Citation Nr: 1301166 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 11-09 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1966 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision on behalf of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (hereinafter "the Court") held that an initial claim of entitlement service connection for posttraumatic stress disorder should also be read as including other psychiatric disorder diagnoses reasonably raised by the symptoms described and all information obtained in support of the claim. Although the RO addressed the depression and PTSD issues as separate claims, the Board finds they are more appropriately addressed as a single issue to include consideration of any other applicable psychiatric diagnoses of record in this case. The issue of entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. A chronic back disability was not manifest during active service, arthritis was not manifest within one year of active service, and a present back disability is not shown to have developed as a result of an established event, injury, or disease during active duty. CONCLUSION OF LAW A chronic back disability was not incurred or aggravated as a result of active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled by information provided in an October 2007 letter to the Veteran. That letter notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claim and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private treatment records, and the Veteran's statements in support of his claim. Although an August 2011 report noted the Veteran and his spouse were receiving Social Security Administration (SSA) benefits, the Veteran has identified no records possibly associated with his SSA claim as pertinent to the issues on appeal. It appears from the record that the award is based on his guardianship of his grandchildren as the Veteran has not reported that the award was based on his disability. Notably, at his September 2010 VA examination, the Veteran reported that was most recently self-employed as a furniture store owner from 1994-2000 after retiring as an insurance adjustor; closed the business because of competition from larger stores; and leased the commercial property from 2000 until 2008, when he sold the property. He denied any history of work-related performance problems. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that relevant SSA records must be obtained, but that there must be a specific reason to believe the records may give rise to pertinent information to conclude that they are relevant. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The Board finds that further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Court has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA medical opinions obtained as to the issue addressed in this decision are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Service Connection Claim Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection can be granted for certain diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a 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 is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, 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). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). In this case, service treatment records dated in June 1968 show that the Veteran complained of neck pain after a motor vehicle accident and that examination and X-ray studies were negative. An August 1968 periodic report of medical history noted he had a history of recurrent back pain; a report of medical examination revealed a normal clinical evaluation of the spine. A December 1968 report noted he complained of cough, nausea, and back pain, but provided no physical examination findings or diagnosis. The Veteran's January 1969 separation examination revealed a normal clinical evaluation of the spine. A January 1969 report of medical history noted he reported recurrent back pain which the examiner noted referred to an April 1968 whiplash injury with a negative X-ray examination of the cervical spine. Private treatment records dated in April 1983 noted the Veteran was seen for a complete physical examination and that he had no back or joint complaints. A November 1989 report noted he had no back or joint complaints and that physical examination revealed the back was within normal limits. A diagnosis of mechanical low back pain syndrome was provided in July 1992. VA treatment records dated in August 2005 noted the Veteran reported a several year history of lower back pain and that he did not recall any specific injury to his back. Records show he underwent L4, L5 compressive laminectomy in August 2006. Additional records include diagnoses of low back pain and lumbar spinal stenosis without opinion as to etiology. In statements in support of his claim the Veteran asserted that he had a lumbar spine disability as a result of filling and stacking sand bags in preparation of monsoon season during active service. In a March 2011 VA Form 9 he stated he had been exposed to chemical and biological agents and radiation without indication as to a specific present disability. An August 2010 VA examination report included a diagnosis of status post L3-L4 posterior lumbar interbody fusion following an L4-5 compression laminectomy. The examiner summarized the pertinent evidence of record and found no evidence of a low back condition in service or before 1992 which was 23 years after his military discharge. It was noted that private treatment records dated in 1983 and 1989 revealed no back problems. The examiner found that it was unlikely that an injury like the one the Veteran described from filling and lifting sand bags in 1966 would result in pathologic changes such as spinal canal stenosis requiring the need for surgery 39 years later. Based upon the evidence of record, the Board finds that a chronic back disability was not manifest during active service, that arthritis was not manifest within one year of active service, and that a present back disability is not shown to have developed as a result of an established event, injury, or disease during active duty. The Veteran's statements as to having an acute low back injury in service related to filling and lifting sand bags is consistent with the circumstances of his active service. The opinions, however, of the August 2010 VA examiner that there was no evidence of a low back disorder for 23 years after service and that the Veteran's present lumbar spine disability was not related to service are persuasive. These opinions are shown to have been based upon examinations and a substantially complete review of the evidence of record. The Board notes the Court has held that there is no need for a medical examiner to eliminate all lesser probabilities or to ascertain greater probabilities. See Jones v. Shinseki, 23 Vet. App. 382, 388 (2010). It also is significant to note that the Board may not refute "expert medical conclusions in the record with its own unsubstantiated medical conclusions." See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), overruled on other grounds by Hodge v. West, 155 F3d 1356 (Fed. Cir 1998). While the Veteran is competent to provide evidence as to observations and some medical matters, see Jandreau, 492 F.3d at 1376-77 and Buchanan, 451 F.3d at 1336, his statements in this case are, at most, conclusory assertions of a nexus between the circumstances of his service and a present back disability. As questions of such a relationship to service are complex etiological questions akin to the type of medical matters which courts have found laypersons are not competent to testify, the Veteran's lay statements are insufficient to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide etiology or nexus evidence); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The August 2010 VA examination is shown to have adequately considered the Veteran's lay statements, but to have, in essence, rejected his reports as not credible to the extent they indicated any symptoms related to injuries incurred during active service. But see Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (Court noted that it appeared that the medical examiner impermissibly ignored the appellant's lay assertions that he sustained an injury during service). Therefore, the Board finds that entitlement to service connection for a back disability is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. ORDER Entitlement to service connection for a back disorder is denied. REMAND A review of the record shows the Veteran was provided VCAA notice as to the evidence necessary to substantiate his remaining claim. The Board finds, however, that additional development is required prior to appellate review. The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. The Court has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr, 21 Vet. App. at 312. For PTSD claims VA law provides that service connection "requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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. . . ." 38 C.F.R. § 3.304(f) (effective before and after July 13, 2010). Section 4.125(a) of 38 C.F.R. incorporates the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) as the governing criteria for diagnosing PTSD. 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 posttraumatic stress disorder 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (effective from July 13, 2010). VA regulations provided that if a PTSD claim is based on in-service personal assault, evidence from sources other than the appellant's service records may corroborate the appellant'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. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the appellant's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). In this case, the Veteran contends that he has PTSD as a result of stressor events during active service in Korea in November 1966 and as a result of an assault in February 1967. Service treatment records dated in February 1967 noted the Veteran reported he had been hit from behind with what he believed was a bottle. Records show he received stitches to the head. Service records also show he served in the Republic of Korea from July 1966, to August 1967 with the 2d Admin. Co., 2d Inf. Div. as a clerk-typist. A February 1967 unit history for the 1st Battalion, 23d Infantry, 2d Infantry Division, noted that in November 1966 a patrol had been ambushed which resulted in the death of six American soldiers. The Veteran's specific unit does not appear to have been involved in this incident. In fact, at the September 2010 VA psychiatric examination, the Veteran now reports that during the three day firefight, he was walking on patrol along the perimeter of his base; he denied that he was shot at or that he shot at the enemy and that while his division was actually involved in the firefight, he was not directly involved. The Veteran does not claim to have witnessed any specific event at that time. He did report being intensely afraid and extremely scared. Thus, the Board finds that the Veteran's reported stressor event involving an assault in February 1967 is verified, and that his reported stressor that his "Division" was involved in a firefight with hostile military forces in November 1966 is to some extent verified although as noted he has now denied any actual participation in the incident. Although a September 2010 VA PTSD examination report included a diagnosis of depressive disorder (unrelated to military stress), the examiner also found that a review of the Veteran's "military records do not show that there was a 3-day fire fight with North Koreans" nor that "he was ever attached to the 23rd Infantry." The Board notes that the examiner provided no comments as to the February 1967 assault stressor and that his statement as to the November 1966 incident in Korea is inconsistent with the evidence and other publicly available records which show that such an event occurred while the Veteran was stationed in Korea even though his personal participation is not now claimed or verified. VA treatment records also include diagnoses of depression and mood disorder without opinion as to etiology. Therefore, the Board finds that clarification is required as to this matter prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should reviewed by the September 2010 VA examiner, or not available to another appropriate VA examiner, for clarification as to whether there is at least a 50 percent probability or greater (at least as likely as not) that he has an acquired psychiatric disorder as a result of active service or an event demonstrated to have occurred during active service. The examiner must acknowledge that events involving an incident involving hostile military forces with the resultant deaths of six American soldiers attached to the 1st Battalion, 23rd Infantry, 2d Infantry Division while the Veteran was stationed in Korea (even though neither his unit nor his own personal participation is verified and is, in fact, denied by the Veteran on VA examination in September 2010), and indicating an assault on the Veteran in February 1967 are verified. All indicated tests and studies are to be performed. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. A complete rationale for all opinions expressed should be set forth in the examination report. 2. After completion of the above and any additional development deemed necessary, the RO/AMC should review the issue remaining on appeal. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs