Citation Nr: 1009002 Decision Date: 03/10/10 Archive Date: 03/17/10 DOCKET NO. 07-15 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to a compensable initial rating for residuals of a coccyx injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to May 1973. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Waco, Texas, (hereinafter RO). In December 2009, a hearing was held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). FINDINGS OF FACT 1. The record reflects positive VA medical evidence linking an anxiety disorder to the stress resulting from a misdiagnosis of retinitis pigmentosa during service. 2. The weight of the competent evidence is against a conclusion that a current low back disability is the result of service. 3. Residuals of a coccyx injury do not include the partial or complete removal of the coccyx. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, an anxiety disorder was incurred in service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 2. A lumbar spine disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 3. The criteria for a compensable initial rating for residuals of a coccyx injury are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §4.71a, Diagnostic Code (DC) 5298 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The duty to notify was fulfilled in the instant case by multiple letters dated from January 2006 to May 2008 that informed the appellant of the information and evidence necessary to prevail in his claims. The claims were re-adjudicated in a February 2009 supplemental statement of the case and the Veteran provided additional time to respond, curing any prejudice as may have accrued by the failure to provide complete notice in a single letter prior to the initial rating action appealed. With respect to the claim for an increased compensable initial rating for residuals of a coccyx injury, the Federal Circuit held that 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the rating and effective date assigned by a RO for an award of benefits. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this regard, once the February 2007 rating decision was made awarding service connection, an effective date, and a rating for the award of service connection for residuals of a coccyx injury, 5103(a) notice had served its purpose, as the claims had already been substantiated. See Sutton v. Nicholson, 20 Vet. App. 419 (2006). Nevertheless, the May 2008 notification letter informed the Veteran of the relevant rating criteria pertaining to coccyx injuries and was otherwise compliant with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). As for the duty to assist, the service treatment reports, VA clinical reports, and reports from VA examinations that contain medical opinions and sufficient clinical findings to adjudicate the claims on appeal have been obtained. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Legal Criteria/Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. A. Service Connection Claims Service connection may be granted for disability resulting from personal injury suffered or disease contracted coincident with active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.304. There are some disabilities, including arthritis and psychoses, for which service connection may be presumed if the disorder is manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 1. Psychiatric Disability The Veteran has asserted, to include in sworn testimony to the undersigned, that he developed a psychiatric disorder, including PTSD, due to being misdiagnosed with retinitis pigmentosa, which the Veteran stated led him to believe that he would eventually be blind. Review of the service treatment reports do reflect a diagnosis of retinitis pigmentosa, and a Medical Board determined that the Veteran was not fit for duty as a result of this condition that existed prior to service. The March 1972 entrance examination and history collected at that time did not reveal any evidence of a psychiatric disability, although the Veteran did report problems with sleeping. It was noted that there was no current disability associated with sleeping problems on the medical history completed in March 1972. No treatment for a psychiatric disability was shown in service, although the service treatment reports reflect, as the Veteran testified to the undersigned, that he sought a referral to the mental health clinic in March 1973 that was not accomplished. After service, VA clinical records from 2005 reflected treatment for a variously diagnosed psychiatric disorder, to include major depressive disorder and generalized anxiety disorder. Reports dated in November 2005 and January 2006 from a private doctor noted that there was no evidence of retinitis pigmentosa. Reports from a January 2006 VA psychological assessment reflected consideration of the Veteran's preoccupation with the misdiagnosis of retinitis pigmentosa in service, but it was concluded that the Veteran's psychiatric problems were "long standing characterological problems which appear to be the real source of the Veteran's problems in social and occupational functioning." In January 2007, the Veteran was afforded a VA psychiatric examination that was preceded by a review of the claims file. The diagnosis following the examination was generalized anxiety disorder with depression, and the examiner concluded that it was less likely than not that the Veteran's anxiety and depression were related to a misdiagnosis of retinitis pigmentosa and instead were the result of a personality disorder. The Veteran was afforded another VA examination in June 2007 to determine if he had PTSD, and this examination was also documented to have been preceded by a review of the claims file. Following the examination, the Veteran was found to not meet the criteria for PTSD, and it was again found that the misdiagnosis of retinitis pigmentosa during service did not result in his current psychiatric problems and that the Veteran's psychiatric problems were the result of a personality disorder. In November 2008, a VA examiner who reviewed the Veteran's VA and military records indicated that he disagreed with the above assessment that the Veteran's psychiatric problems were not the result of a the misdiagnosed retinitis pigmentosa during service, and his diagnosis was "Mood Disorder due to Medical Condition." He noted that there was no evidence of a personality disorder prior to service and that when he was discharged from service based on the misdiagnosed retinitis pigmentosa, the Veteran did not receive any counseling or a referral for service with impaired vision. It was also noted that the Veteran requested a mental health clinic consultation during service in March 1973 but that he did not receive the consultation. As such, the examiner found that the Veteran "did not have the opportunity to discuss his emotional response with a mental health provide, before being discharged from the service about 2 months later." Based on these facts, he concluded that the Veteran's current anxiety disorder was not present prior to service, began during service ("as he was involuntarily discharged for an erroneous diagnosis") and that the anxiety disorder has persisted since discharge to the present time and was thus more than likely related to service. Additional positive evidence is of record in the form of a May 2009 VA mental health assessment from another VA medical professional reflecting a diagnosis of "Mood Disorder due to Medical Condition (misdiagnosis of retinitis pigmentosa)." As set forth above, it is documented that the Veteran was diagnosed with retinitis pigmentosa during service, but that this was in fact a misdiagnosis. The Veteran also was so concerned about psychiatric problems during service that he sought a referral to the mental health clinic, but that his referral did not occur. There is no evidence of a psychiatric disorder prior to service, to include on the reports from the March 1972 entrance examination and history obtained at that time, and the record reflects a consistent history, to include sworn testimony at the hearing before the undersigned, from the Veteran relating psychiatric problems to the misdiagnosis of retinitis pigmentosa during service and his fear that he would eventually become blind. The November 2008 VA medical opinion finding that the Veteran had an anxiety disorder as a result of the in-service misdiagnosis of retinitis pigmentosa included consideration of the prior negative opinions by VA mental health professionals and is supported by specific reference to evidence contained in the claims file, to include that summarized above. Another VA mental health professional essentially reached the same conclusion in May 2009. Unless the preponderance of the evidence is against the Veteran's claim, it cannot be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 49. Thus, without finding error in the RO's action, the Board will exercise its discretion to find from the above that there is sufficient positive evidence to place the evidence in relative equipoise. As such, and resolving all reasonable doubt in the Veteran's favor, entitlement to service connection for a mood disorder may be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. 2. Lumbar Spine Disability It is the Veteran's assertion, to include in sworn testimony to the undersigned, that he injured his lower back at the same time he fractured his coccyx during service. The service treatment reports reflect that in March 1973, the Veteran slipped and fell on a hard surface and was unable to walk for two days thereafter due to pain. The report from this treatment noted that the Veteran injured the "tail bone" and the assessment was a fractured coccyx. There was no evidence of back problems associated with this injury. A May 1972 service treatment report reflects the Veteran complaining about having twisted his back. X-rays were requested but there are no results from such an x-ray of record and the remaining service treatment reports do not reflect a back disability. After service, the record reflects reference on a March 2006 VA outpatient report to a post-service accident in which the Veteran was run over by a tractor. Treatment after service for degenerative disc and joint disease in the lumbar spine is shown after service, but it was the conclusion of a VA examiner who reviewed the claims file and examined the Veteran in August 2006 that it was less likely than not that these conditions were the result of military service, to include the fracture to the coccyx. As support for this conclusion, the examiner noted that records from the in- service treatment in question did not refer to lumbar spine injury or complaints and that the only reference was to a "tail bone" injury. The Veteran was afforded another VA examination in January 2007, the reports from which reflect reference to the March 2006 tractor injury. The diagnoses in pertinent part were mild facet joint arthritis with disc desiccation at L4-L5 with lumbosacral spine pain, and the examiner by way of an addendum in February 2007 noted that it was less likely than not that the in-service tailbone injury was the cause of the Veteran's lumbar spine disability as this was the result of the March 2006 tractor accident. Another VA examiner noted in October 2006 that based on review of records brought by the Veteran "from the time of military service . . . it appears that the back pain [the Veteran] complains [about] now started at the time of the military service and therefore fit[s] the characteristic of a service connected condition." This examiner made specific reference to the May 1972 service treatment report reflecting complaints of twisting to the back and a request for x-rays, as well as the March 1973 fall and resulting fractured coccyx. As noted above, there is some conflict in the medical evidence as to whether the Veteran's current back problems are the result of service. It is the responsibility of determining the weight to be given to the evidence of record, and this responsibility includes the authority to favor one medical opinion over another. See Cathell v. Brown, 8 Vet. App. 539, 543 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Guerrieri v. Brown, 4 Vet. App. 467 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). The Court has held, for example, that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). A medical opinion based upon speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the claimant's history, and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Further, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion based on an inaccurate history provided by the Veteran is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Bearing the above precedent in mind, in contrast to the October 2006 opinion, the negative opinions set forth above were based on the complete record, to include that relating to the March 2006 tractor accident. The October 2006 opinion made no reference to this accident. Moreover, it is simply the case that the negative VA opinions were based on the correct factual predicate, as demonstrated by the contemporaneous service treatment records, that the March 1973 accident involved the tailbone, with no reference to there being any back problems associated with this accident. Finally, the negative VA opinions followed extensive physical examinations and were supported by detailed clinical findings from this examinations, whereas the October 2006 VA opinion is not documented to have been preceded by an examination of the Veteran at all. As such, and given the fact but for an isolated reference to the Veteran having twisted his back there is no in-service documentation of a back injury, the Board finds the probative weight of the negative VA medical opinions rendered in August 2006 and February 2007 to exceed that of the opinion rendered in October 2006. As for the Veteran's assertions that his current back disability is the result of service; in particular, the fall that resulted in the fractured coccyx, such assertions cannot be used to establish a claim as a layperson is not qualified to render a medical opinion regarding the etiology of disorders and disabilities. Espiritu; cf. Jandreau. In short therefore, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for service connection for a lumbar spine disability. Thus, the doctrine of reasonable doubt is not for application with respect to this claim and the claim must be denied. Gilbert, supra. B. Increased Rating for Residuals of a Coccyx Injury Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. As the Veteran appealed the initial rating assigned for residuals of a coccyx injury, the entire body of evidence is for equal consideration with respect to these claims. Consistent with the facts found, the ratings assigned for this condition may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); See Hart v. Mansfield, 21 Vet App 505 (2007) (staged ratings are potentially applicable in cases not involving the assignment of an initial rating.) A compensable (10 percent) rating for a disability affecting the coccyx requires the partial or complete removal of the coccyx with painful residuals. 38 C.F.R. § 4.71a, DC 5298. As indicated above, the Veteran sustained a fracture of the coccyx in service. Service connection for residuals of a coccyx injury was granted by a February 2007 rating decision, and a noncompensable rating was assigned under DC 5298. The post service evidence reflects complaints of pain radiating from the tailbone into the left lower extremity. See eg. March 2006 VA and September 2006 VA outpatient treatment reports and reports from a January 2007 VA examination. X-rays in October 2006 showed anterior angulation of the coccyx compatible with an old healed fracture through the C1-C2 coccygeal joint. While the Veteran has describe pain associated with the conditions, to include in sworn testimony to the undersigned, nowhere is it shown or contended that there was a partial or complete removal of the coccyx, and the Veteran denied having such residuals at the hearing before the undersigned. As such, a compensable rating for residuals of a coccyx injury cannot be assigned at any time subsequent to the effective date of the initial rating, December 22, 2005. See 38 C.F.R. § 3.400 (2008); Fenderson, supra. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." See Barringer v. Peak, 22 Vet App 242 (2008) The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Floyd v. Brown, 9 Vet. App. 88, 94 (1996). In this case, however, the schedular evaluation is not inadequate. As indicated, a rating in excess of that currently assigned is provided for certain manifestations of the Veteran's service-connected residuals, but those manifestations are not present in this case. Moreover, the Board finds no evidence of an exceptional disability picture, as the service-connected residuals have not shown functional limitation beyond that contemplated by the noncompensable rating currently assigned. Accordingly, referral of this decision for extraschedular consideration is not indicated. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for an increased rating for residuals of a coccyx injury is denied, the doctrine is not for application. Gilbert, supra. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for an anxiety disorder is granted. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to a compensable initial rating for residuals of a coccyx injury is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs