Citation Nr: 18123927 Decision Date: 08/03/18 Archive Date: 08/03/18 DOCKET NO. 10-25 495 DATE: August 3, 2018 ORDER Entitlement to service connection for a lumbar spine disability, to include lumbosacral spine stenosis and degenerative disc disease is granted. Entitlement to an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for coronary artery disease (CAD) is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, his current lumbar spine disability, to include lumbosacral spine stenosis and degenerative disc disease is related to his military service. 2. Resolving all doubt in the Veteran’s favor, his current acquired psychiatric disability, to include PTSD and MDD, is related to in-service personal assault. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability, to include lumbosacral spine stenosis and degenerative disc disease have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for an acquired psychiatric disorder to include PTSD and MDD have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 16 to May 7, 1969. In August 2012 the Veteran testified before the undersigned Veterans Law Judge with regard to his mental health claims currently on appeal. In September 2013 the Board remanded the Veteran’s claims in order to provide him with the opportunity to offer testimony on his remaining claims as he had indicated that he wanted a hearing for his remaining claims in his May 2012 VA Form 9. However, in April 2017, the Veteran withdrew his request for an additional hearing. Therefore, the Board finds that his request for a hearing has been withdrawn and no prejudice will befall the Veteran by the Board proceeding with adjudication of his claims. The Board notes the Veteran’s claim of service connection for an acquired psychiatric disability was originally characterized only as a claim for service connection for PTSD and for MDD. As the record suggests he has multiple psychiatric diagnoses, the Board has recharacterized the claim as indicated above to afford the Veteran the broadest scope of review. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Board notes that the RO treated his claims for service connection for PTSD, CAD and a lumbar spine disability as petitions to reopen previously denied claims in the December 2017 statement of the case. However, the Board notes that such claims were already on appeal and therefore are original claims for service connection and not petitions to reopen. The issue of entitlement to a total disability rating based on individual unemployability was raised in a February 2016 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940). This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). Service Connection Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303 (b). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; 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, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b) (2017). Notably, congenital or developmental defects are not diseases or injuries within the meaning of the applicable law and regulations for VA compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9 (2017). A defect is a structural or inherent abnormality or condition which is more or less stationary in nature. VAOPGCPREC 82-90. A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Id. Service connection may be granted for diseases of congenital, developmental, or familial origin, but not for defects, unless such defect was subject to superimposed disease or injury during military service. Id. Such a disease, by its very nature, preexists a claimant’s military service. Service connection for PTSD is warranted when the evidence shows: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for a lumbar spine disability, to include lumbosacral spine stenosis and degenerative disc disease The Veteran contends that his low back disability, diagnosed as lumbosacral spine stenosis and degenerative disc disease, was caused by his in-service duties that required lifting heavy equipment and marching/running for long distances. Alternatively, he has alleged that his preexisting lordosis was aggravated beyond its natural progression resulting in his current disabilities. The Veteran’s service treatment records reflect that while his entrance examination in January 1969 did not note any preexisting conditions, an addendum completed later in January 1969 noted that the Veteran had lordosis. In addition, a February 1969 treatment note reflects the Veteran’s complaint of pain in the middle of his spinal column. The remainder of the Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of a lumbar spine disability. His discharge examination conducted in May 1969 reflects a normal spine. In July 2009, the Veteran underwent a VA Spine examination. The examiner noted that the Veteran’s pain began in 1970 and diagnosed the Veteran with lumbosacral spine stenosis and degenerative disc disease. He opined that it was less likely than not that the lordosis that the Veteran had prior to service was permanently worsened beyond its natural progression due to the Veteran’s service. The examiner provided the rationale that lumbar lordosis does not worsen to produce spinal stenosis or degenerative disc disease. However, the examiner provided no opinion as to the likely etiology of the Veteran’s low back disabilities nor did he offer an opinion as to any relationship between the Veteran’s current disabilities and the back pain he reported in service. In May 2013, the Veteran submitted a private Thoracolumbar Spine disability benefits questionnaire (DBQ). The examiner diagnosed spinal stenosis, but provided no etiological opinion. In July 2014, the Veteran submitted another private Thoracolumbar Spine DBQ. The examiner noted that the Veteran had been diagnosed with degenerative disc disease. He further noted that the Veteran reported low back pain since 1969, after landing on his back during training. The examiner provided no etiological opinion. In August 2014, the Veteran provided a private opinion from his chiropractor, who noted that the Veteran reported low back pain since 1969. The examiner noted that the impact of running long distances with heavy weight in military boots creates undue stress on the intervertebral discs, primarily in the lumbar spine. Furthermore, the examiner noted that the impact from the accelerated steps would increase a force to the base of the spine, and that force would be absorbed by the L4, L5 and S1 discs, creating strain on the discs and nucleus pulposus, which would collapse one of the walls and create a bulge of the intervertebral discs. The examiner stated that this condition would create excruciating pain in the low back and that degenerative disc disease would also result. The examiner found that the Veteran’s low back disabilities were a direct result of the long hours of training in extreme conditions without proper footwear. Initially, the Board notes that while his January 1969 entrance examination did not note his preexisting condition, an addendum approximately one week later, did add such to his records. Therefore, the Board notes that the Veteran’s lordosis was noted upon entrance. Furthermore, the Board notes that such was documented as a defect, and therefore not subject to VA compensation. 38 C.F.R. §§ 3.303 (c), 4.9. A defect is a structural or inherent abnormality or condition which is more or less stationary in nature. As previously noted, the only way such could be subject to compensation would be if there was a superimposed disease or injury during military service. However, here there is no evidence in the record and no allegation by the Veteran of such. Furthermore, the Board notes that the July 2009 VA examiner indicated that lordosis was not aggravated by or in any way related to the Veteran’s current low back disabilities. Therefore, compensation based on aggravation of a preexisting condition is not warranted. Consequently, in order for the Veteran to qualify for compensation, there must be probative evidence linking the Veteran’s currently diagnosed low back disabilities to his military service. The Board notes that it is not in dispute that the Veteran currently suffers from a lumbar spine disability, to include lumbosacral spine stenosis and degenerative disc disease. See July 2009 VA examination, May 2013 DBQ, July 2014 DBQ, and August 2014 private opinion. However, as the Veteran did not report back pain within one year of his release from service, and there is no competent medical evidence to document the presence of lumbar arthritis within one year of the Veteran’s separation from service, presumptive service connection is not warranted. Therefore, the Board will consider direct service connection. While the Veteran’s service treatment records are negative for complaints, treatment, or diagnoses referable to his current lumbar spine disabilities, the Board notes that he did report pain in February 1969. Furthermore, he has alleged that physical exertions during his basic training caused undue stress on his lumbar spine resulting in his current diagnoses. The competent and credible lay statements from him, confirm that he lifted heavy equipment and ran long distances during basic training, and experienced back pain therein. Therefore, the Board finds that the in-service element for service connection has been met. The question that remains is whether the Veteran’s current disabilities were caused by or are related to his military service. In this regard, in an August 2014 letter, the Veteran’s private chiropractor noted that he reviewed the Veteran’s records and performed a physical examination, and opined that Veteran’s low back disabilities were a direct result of the long hours of training in extreme conditions without proper footwear. The Board finds that the August 2014 opinion provided by the Veteran’s private chiropractor is highly probative regarding a connection between the Veteran’s low back disabilities and his military service. In this regard, the opinion reflects consideration of all relevant facts and the examiner provided a sufficient rationale for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Additionally, the Board finds the Veteran’s chiropractor’s assessment to be highly probative as he is the Veteran’s treatment provider, allowing him to fully understand the nature of the Veteran’s musculoskeletal disability and his relevant medical history. Moreover, the record does not contain any competent opinion to the contrary. Therefore, resolving all doubt in the Veteran’s favor, the Board finds that his currently diagnosed low back disabilities are directly related to his military service. Consequently, service connection for a lumbar spine disability, to include lumbosacral spine stenosis and degenerative disc disease is warranted. 38 U.S.C. 5107; 38 C.F.R. § 3.102; Gilbert, supra. Entitlement to an acquired psychiatric disorder to include PTSD and MDD The Veteran has specifically alleged that he has PTSD and MDD based on a reported history of multiple traumatic events in service, to specifically include personal assault by a superior officer. VA regulations provide that, if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304 (f)(5). To that end, the United States Court of Appeals for the Federal Circuit observed that 38 C.F.R. § 3.304 (f)(5) specifically states that a medical opinion may be used to corroborate a personal assault stressor, noting “medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that “something more than medical nexus evidence is required for ‘credible supporting evidence’ “in personal assault cases). The Veteran’s service treatment records do not reflect any complaints, treatment, or diagnoses related to psychiatric disability. Furthermore, during an April 1969 in-service mental health evaluation, it was noted that the Veteran did not suffer from any psychosis or neurosis or have any mental or physical disqualifications. However, the Veteran specifically reports that he both witnessed his superior officer attack a fellow Marine and was physically beaten by his superior officer, to include being kicked in the testicles. Furthermore, an April 1969 treatment note documents complaints of left testicle pain. Post-service, the Veteran was diagnosed with depression and later PTSD. Thereafter, VA records show continuous treatment and counseling for mental health conditions. In December 2007, the Veteran underwent a VA mental health examination. He reported that he had been depressed since he left the Marine Corps. The examiner diagnosed the Veteran with depression, but provided no etiological opinion as the Veteran’s file was not available for review at the time. In January 2008, the VA examiner reviewed the Veteran’s file and opined that it was less likely than not that the Veteran suffered from depressive disorder related to his military service. In November 2008, the Veteran’s treating physician provided a statement, where he noted that the Veteran had been diagnosed with and treated for major depression for several years. Furthermore, he noted that the Veteran’s symptoms were severe and poorly managed with medication. However, the physician did not provide an etiological opinion. In August 2012, the Veteran submitted an additional private statement from another of his treating physicians. Again, the doctor noted that the Veteran received treatment and was on medication for depression and impulse control, but did not provide an etiological opinion. An additional April 2013 statement, again noted that the Veteran was receiving treatment and medication for depression and anger management and had begun a PTSD treatment program. However, no etiological opinion was provided. In September 2013, the Veteran’s private physician provided another statement. The doctor noted the Veteran’s reports of an in-service personal assault and that the Veteran had been diagnosed with PTSD. However, no etiological opinion was provided. In March 2015, the Veteran again provided a statement from one of his treating physicians. The doctor again noted the Veteran’s reports of in-service personal assault as well as his PTSD treatment and reported symptoms in relation to his in-service personal assault. However, the physician did not provide an etiological opinion. In September 2015, the Veteran submitted a private mental health examination. The examiner noted that he had reviewed the Veteran’s records as well as conducted an examination in addition to treating the Veteran for his diagnosed depression and PTSD. The examiner also diagnosed the Veteran with substance abuse in remission. The examiner opined that the Veteran’s depression and PTSD were at least as likely as not caused by or the result of his active duty service. The examiner provided the rationale that the Veteran’s symptoms were directly related to his traumatic stressor. His distressing nightmares, flashbacks and triggered intrusive recollections contained full traumatic stressor content. The examiner then described, in extensive detail, the manner in which the Veteran met each of the diagnostic criteria for depression and PTSD to include how they relate to his in-service stressor. Throughout the appeal, the Veteran submitted lay statements in support of his claim. In July 2014, the Veteran’s mother stated that her son was forever changed from his experience in the military. In addition, the Veteran’s sister submitted a statement in which she recounted how close her and the Veteran had been prior to his enlistment. She stated that upon his return from the military, he was a different person. She reported that the Veteran was aggressive, hostile, and difficult to reach. She stated that he was demanding and his sleep habits had changed. She noted that he would pace through the house and often leave in the middle of the night. It is not in dispute that the Veteran has a diagnosis of PTSD and MDD; such conditions are clearly and consistently documented in his post-service treatment records. Although his service treatment records are negative for any objective evidence of personal assault, the Veteran is competent to report such trauma, as he certainly would have an intimate personal knowledge of such details. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The mere fact that his assertions are not supported by contemporaneous definitive clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). His reports are numerous and consistent across both statements made directly in support of his claim and in the course of seeking treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (noting a strong motive to be truthful to receive proper treatment). Moreover, the Board notes that an integral part of his reports is that his superior officer kicked him in the testicles. With that in mind, the Board finds that the April 1969 service treatment note reflecting left testicle pain is at the very least suggestive, if not wholly corroborative, of his account. Furthermore, the Veteran’s sister’s statement noted a drastic change in her brother’s behavior upon his return from the service. Consequently, resolving reasonable doubt in the Veteran’s favor, the Board finds his reports of personal assault credible. Moreover, medical opinion evidence may corroborate a personal assault stressor and multiple mental health professionals have found the Veteran’s report of personal assault to be credible. See Menegassi, 683 F.3d at 1382. Therefore, in light of Menegassi and resolving reasonable doubt in the Veteran’s favor, the Board finds the evidence in the record adequately corroborates the Veteran’s alleged personal assault stressor in service. All that remains to be shown to substantiate his claim is medical evidence relating his current PTSD and MDD to the corroborated stressor in service. As noted above, the record includes multiple etiological opinions, from the December 2007/January 2008 VA examiner as well as the September 2015 private physician. While the VA examiner found that the Veteran’s depression was not related to his military service, he did not provide a sufficient rationale for the conclusion reached. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124 (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.” Furthermore, he did not discuss the Veteran’s PTSD. Therefore, the Board affords it little probative weight. However, the September 2015 examiner provided a thorough psychiatric report, which discussed both the Veteran’s PTSD and MDD as well as detailing the underlying reasons, bases, and his relevant psychiatric history. Therefore, the Board finds it highly probative evidence in this matter; absent any probative medical evidence to the contrary, it is also persuasive. Accordingly, the Board finds that, resolving all reasonable doubt in the Veteran’s favor, the evidence reasonably shows that he has current diagnoses of PTSD and MDD that are related to verified personal assault during service. Service connection is therefore warranted and the appeal in this matter must be granted. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s remaining claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that, while the Veteran underwent VA examinations in July 2009 and March 2014 in regard to his claims for service connection for CAD and a cervical spine disability, respectively, additional VA examinations are necessary to decide his remaining claims for service connection. Entitlement to service connection for a cervical spine disability is remanded. In regard to the Veteran’s claim for service connection for a cervical spine disability, the Veteran has alleged that his cervical spine condition is due to the physical stresses and demands put upon his body during basic training, and his reported incident of being thrown onto his back during service. The Board notes that the Veteran underwent a VA examination in March 2014. The examiner diagnosed the Veteran with cervical strain, and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner provided the rationale that there was no medical evidence of any connection and no continuity of care from the time of the Veteran’s service to the present. The Board finds this rationale to be insufficient for adjudication purposes. While the examiner noted the in-service complaint of pain in the middle of his spinal column, he did not discuss the Veteran’s additional allegations of in-service trauma. Therefore, on remand an opinion which takes into account all of the Veteran’s allegations and which provides a thorough rationale for all opinions reached should be obtained. Entitlement to service connection for coronary artery disease (CAD) is remanded. In regard to the Veteran’s claim for service connection for CAD, the Veteran alleges that such began in or is otherwise related to his service. The Board notes that the Veteran underwent VA examinations in January 2002 and July 2009. The January 2002 examiner noted that the Veteran had CAD without a history of myocardial infarction, but gave no etiological opinion. The July 2009 examiner also diagnosed the Veteran with CAD and found that such was not related to or aggravated by his noted preexisting pectus carinatum. The examiner noted that the Veteran’s pectus carinatum was noted at his service entrance but stated that such was a defect and would not progress into CAD or have any relationship to the Veteran’s currently diagnosed disability. Furthermore, the examiner found that the Veteran’s CAD was more likely due to drugs, obesity, and smoking. However, the examiner did not discuss the February 1969 in-service notation of chest pain. Therefore, on remand an opinion which takes all of the Veteran’s allegations as well as all the evidence of record into account, should be obtained. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. Thereafter the AOJ should arrange for an orthopedic examination of the Veteran to ascertain the nature and likely etiology of his cervical spine disability. The Veteran’s record must be reviewed by the examiner in conjunction with the examination, and any diagnostic studies deemed necessary. Based on review of the entire record and examination of the Veteran, the examiner should provide opinions that respond to the following: A) Please identify, by diagnosis, any cervical spine disability found. B) For any cervical spine disability diagnosed, is it at least as likely as not (a 50 percent or better probability) that such disability is related to his service, to include as to his documented back pain therein, and/or his reported physical stress during basic train and his reported injury? All opinions must include complete rationale. 3. The AOJ should arrange for a cardiology examination of the Veteran to ascertain the nature and likely etiology of his CAD. The Veteran’s record must be reviewed by the examiner in conjunction with the examination, and any diagnostic studies deemed necessary. Based on review of the entire record and examination of the Veteran, the examiner should provide opinions that respond to the following: A) Please identify any manifestations of the Veteran’s CAD. B) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s CAD is related to his service, to include as related to his documented chest pain in February 1969? (Continued on the next page) All opinions must include complete rationale. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Unger, Associate Counsel
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