Citation Nr: 1314903 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-03 534A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL The appellant-Veteran ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had honorable, active military service from August 2, 1960, to August 1, 1964. He extended his enlistment and had additional service from August 2, 1964, to November 14, 1968, but that has been characterized as under other than honorable conditions. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As support for his claims, the Veteran testified at a hearing at the RO in October 2011 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). At the outset of the hearing, the Veteran indicated he was revoking his power of representation with the Texas Veterans Commission (TVC), preferring instead to proceed in his appeal on his own behalf, so pro se. In May 2012 the Board determined there was new and material evidence, so reopened the claim for service connection for a low back disorder. But rather than immediately readjudicating this claim on its underlying merits, the Board instead then proceeded to remand this claim, as well as those for a bilateral knee disorder and PTSD, to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. Conversely, the Board went ahead and denied an additional claim for tinnitus. These remaining claims for a low back disorder, a bilateral knee disorder, and PTSD require still further development before being decided on appeal, so the Board is again remanding them to the RO via the AMC. REMAND Where the record before the Board is inadequate to render a fully informed decision, a remand is required to fulfill the duty to assist the Veteran in developing facts pertinent to his claims. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In the prior May 2012 remand the Board explained that, in a June 1970 administrative decision, the RO had determined the Veteran's discharge from service on November 14, 1968, was under other than honorable (OTH) conditions and, thus, a bar to VA benefits. Therefore, service connection was only possible for disability resulting from disease or injury incurred in or aggravated by his first period of service since it was precluded as a matter of law for any disability resulting from disease or injury incurred in or aggravated by his second period of service seeing as though it was disqualifying. See 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). His service personnel records (SPRs) show he initially had served from August 2, 1960, to August 1, 1964, and that he had extended his enlistment on June 8, 1964, for four additional years. But he had two court martials, the first of which was on November 9, 1965. It found him guilty of resisting apprehension by armed forces police and striking a noncommissioned officer and a member of the armed forces police, as well as appearing without military uniform by wearing civilian clothes and carrying a concealed weapon. In July 1966, he was found guilty by summary court martial for unauthorized absence. Subsequently, in October 1968, he requested undesirable discharge to avoid trial by special court martial, a request that ultimately was approved. The June 1970 RO administrative decision mentioned determined that his discharge from service for the period from August 2, 1964, to November 14, 1968, was under dishonorable conditions due to willful, persistent misconduct, and that, as a result, he was not entitled to benefits for that period of service. But for the preceding period of service from August 2, 1960, to August 1, 1964, the RO's administrative decision cited a statutory regulation relating to extensions of enlistments, indicating an extension "shall not operate to deprive such persons upon discharge of any right, privilege or benefit to which they would have been entitled at the expiration of the former term of enlistment." Accordingly, the RO determined the initial period of service from August 2, 1960, to August 1, 1964, was under honorable conditions, in turn allowing the Veteran to be eligible for VA benefits for that period of service - albeit that period of service alone. In a March 13, 2013 statement submitted even since the Board's May 2012 remand, the Veteran indicated he had contacted the Discharge Review Board for correction of his Naval records to see "if I could resume where we left off in 2008 [referring to his prior attempt to have his discharge for his second period of service upgraded] but found out I would have to start the process all over again which is what I am now doing. I understand this could take a year or more." Thus, the RO/AMC needs to contact the Naval Discharge Review Board or other appropriate authority to determine the status of the Veteran's re-filed application to have his discharge upgraded concerning his second period of service. From what he has indicated, it appears the proceedings are underway or soon will be. With regards to his mental health, in the May 2012 remand the Board explained that his claim for service connection for PTSD was seemingly partially predicated on the notion that he was personally assaulted during his military service, including in acts of "racial prejudice and bigotry". So he was to receive the type of notice contemplated by 38 C.F.R. § 3.304(f)(5) for this type of claim. VA will not deny a PTSD claim that is based on personal assault in service without first advising the claimant that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may then submit any evidence that it receives to an appropriate medical or mental health care professional for an opinion as to whether it indicates that a personal assault occurred. Id. See also Bradford v. Nicholson, 20 Vet. App. 200 (2006); M21-1MR IV.ii.1.D.17. The Board therefore additionally determined that a VA compensation examination and opinion were needed concerning this claim to determine the nature and etiology of his current mental illness, including PTSD. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Although there was evidence suggesting he had PTSD because of events that had occurred during his service in Vietnam, he since had contended that his PTSD was the result of other, noncombat-related stressors, such as mentioned being subjected to acts of racial prejudice and being assigned funeral duties as a bugler aboard the U.S.S. Hancock. A medical opinion diagnosing PTSD does not generally suffice to verify the occurrence of the claimed stressors in service. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). That is to say, generally speaking, a stressor cannot be established as having occurred merely by after-the-fact medical nexus evidence. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Significantly, though, there is an exception to this general rule if the claim, as here, is at least partly predicated instead on an alleged personal assault. See YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). To this end, the Veteran was sent the required PTSD development letter and questionnaire in May 2012, but the letter did not comply with the notice requirements for this type of claim. In particular, he was not informed that VA would not deny a PTSD claim that is based on personal assault in service without first advising him that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him the opportunity to furnish this type of evidence or advising VA of potential sources of such evidence. He also was not informed of specific sources other than his service records that might tend to corroborate his account of blatant acts of prejudice or bigotry and his being a bugler while aboard the U.S.S. Hancock and being assigned to play taps at funeral services. As well, he was not informed that he could provide statements from family members, roommates, fellow service members, or clergy or that he could provide examples of behavior changes that might constitute credible evidence of a stressor, such as requests for a transfer to another military duty assignment, deterioration of work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause, or unexplained economic or social behavioral changes. 38 C.F.R. § 3.304(f)(5). As also was requested in the Board's prior May 2012 remand, he was provided a VA mental status evaluation in June 2012. The examiner confirmed the diagnosis of PTSD but attributed it to the Veteran's second period of service - which, as explained, is disqualifying because of the character of his discharge. With regards to the first period of service, the examiner only commented that the Veteran's diagnosis of PTSD was not due to that period of service. No rationale was provided, and this is where most of the probative value of an opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two"). There equally was no discussion of the Veteran's assertions about race relations and the funeral detail. The Board, therefore, finds this medical examination and opinion do not contain sufficient detail to decide this claim. Hayes v. Brown, 5 Vet. App. 67, 73 (1996). A medical opinion is considered adequate, versus inadequate, when it is based upon consideration of the Veteran's prior medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the disability will be fully informed and permit the Board to weigh the probative value of the opinion against others. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). And to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, instead, must also support the conclusion with sufficient rationale and explanation. Stefl, 21 Vet. App. at 124. The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Once VA endeavors to provide an examination for an opinion in a service-connection claim, even if not statutorily obligated to, VA must ensure the examination and opinion are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). If not, it is incumbent on the Board to return the examination report to obtain all necessary additional comment. 38 C.F.R. § 4.2. With regards to the claims for service connection for a low back disorder and a bilateral (right and left) knee disorder, the medical examinations accorded the Veteran in June 2012, also following and as a result of the Board's prior May 2012 remand, likewise do not contain sufficient detail to decide these claims. As concerning the Veteran's knees, the examiner stated he could not find any service treatment record (STR) referencing a knee problem. In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.). VA adjudicators have to be careful not to equate negative evidence, meaning actual evidence weighing against a party, with the absence of substantive evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002). But that said, the Federal Circuit Court went on to indicate in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."); Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). The Federal Circuit Court has 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). It therefore is entirely permissible for an examiner to draw this negative inference from the absence of any indication in the STRs of a knee problem when the disability is not alleged to be the result of disease or injury incurred or aggravated in combat, assuming also the STRs are complete or at least substantially complete in relevant part. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). But the Court also has found an examination inadequate where the examiner did not comment on the Veteran's report of injury in service and instead relied exclusively on the absence of evidence in the STRs to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). This VA examiner added that he also found no medical evidence the Veteran had developed a chronic knee problem soon after service. He was aware the Veteran had undergone surgery on his right knee since service, during the 1990s; "however, it is unknown why. He has age-related degeneration." The examiner nonetheless did not address the Veteran's assertions of symptoms that he supposedly had in service in formulating the requested opinion. Symptoms, not treatment for them, are the essence of continuity of symptomatology contemplated by 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under § 3.303(b) is an alternative method of showing chronicity of disease or injury in service to in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). The condition at issue, however, must have been "noted" during service, not just initially after the fact. Moreover, this proof exception only applies to conditions identified as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As for the claimed low back disorder, the VA examiner's rationale is inadequate. He determined this disorder was less likely than not related to the Veteran's service by merely saying there was no indication in the STRs of any back complaints and there was no post-service indication of a disability, although he then noted the Veteran "currently has very mild degeneration typical for his age," so suggested any current back disability is age-related. But he neglected to address the Veteran's assertions of symptoms stemming from his playing sports during his first period of service, so not just in relation to his disqualifying second period of service. If the examiner believes all current disability, if any, involving the back is age-related, he needs to more fully discuss why it is not instead consistent with the type of activity during the Veteran's service that he cites as the source or cause of his current disability. The Board resultantly believes that further development of these claims is warranted, so the Board is again REMANDING them to the RO via the AMC for the following additional development and consideration: 1. Obtain all records concerning the Veteran's most recent application to the Department of Defense Discharge Review Board to try and get the discharge for his period of service from 1964 to 1968 upgraded from under conditions other than honorable. All documents available should be obtained and associated with the claims file for consideration. If a negative response for any such records is received, including because no such additional records yet exist, in turn meaning further attempts to obtain these records would be futile, then the Veteran must be duly apprised of this. 38 C.F.R. § 3.159(c) and (e). 2. Inform the Veteran that he can provide statements from family members, roommates, fellow service members, or others who might have knowledge of his mental health, low back, and/or knee problems ever since his first period of service. He also must be given opportunity to provide examples of behavioral changes during his first period of service that might constitute credible evidence of the claimed stressor incidents he cites as the source or cause of his PTSD, including from the racism alleged and from having to play taps at funeral services, etc. Ask that he be more specific with regards to his assertions of prejudice and the incident(s) when he played taps at the funeral(s). All information he provides must be associated with the claims file for consideration. 3. Give the VA compensation examiner that evaluated the Veteran in June 2012 concerning his bilateral knee and low back claims opportunity to review the claims file, including the Veteran's report of his experiences during his first period of service from 1960 and 1964, and provide supplemental comment concerning the etiologies of these claimed disorders in terms of the likelihood (very likely, as likely as not, or unlikely) they are related or attributable to the type of activity he claims to have occurred during that initial period of service. It is most essential the examiner discuss the underlying rationale of the opinion concerning the cause of these disorders, if necessary citing to specific evidence in the file supporting conclusions. If, as an example, the examiner believes there should be some actual objective documentation of relevant complaints or disability in service in the STRs, then it is permissible to cite this as one of the reasons for disassociating any current knee or low back disability from service, just cannot be the sole or exclusive reason for concluding the Veteran necessarily did not have these now claimed disabilities during his service or even during the ensuing years preceding their initial diagnoses. In other words, there at least has to be acknowledgement of the Veteran's lay testimony concerning this. The Board eventually will have to determine whether the Veteran's lay testimony, even if competent, is also credible to ultimately have probative value. It therefore is requested in the meantime that the examiner better explain why the current knee and low back disability the Veteran has is inconsistent with the type of activity he says occurred during his first period of service and, instead, as an example, is more so age-related, if there is still this belief. If the examiner concludes an opinion cannot be expressed without resorting to mere speculation, he must also indicate why a response is not possible or feasible, such as by specifying whether additional evidence or other procurable data is needed, the limits of medical knowledge have been exhausted, or there are multiple possible etiologies with none more prevalent than another. See Jones v. Shinseki, 23 Vet. App. 382 (2010). So merely saying he cannot respond will not suffice. If, for whatever reason, this examiner is unavailable to provide this further comment (supplemental opinion), then have someone else do it that is qualified to make these necessary determinations. In this eventuality, however, the Veteran may need to be reexamined, but this is left entirely to the designee's discretion. 4. Similarly, the clinical psychologist that examined the Veteran for compensation purposes in June 2012 and attributed the PTSD diagnosis to events that occurred during the Veteran's second period of service (which is disqualifying) should be asked to refamiliarize himself with the evidence in the claims file and provide supplemental comment, i.e., an addendum opinion, as to the likelihood (very likely, as likely as not, or unlikely) that events during the Veteran's initial period of service from 1960 to 1964 (which is not disqualifying) resulted in the PTSD, in particular, working as a bugler playing taps at funerals and his reports of acts of racial prejudice and bigotry. It is most essential this examiner discuss the underlying rationale of the opinion concerning the cause of the PTSD, if necessary citing to specific evidence in the file supporting conclusions. So, as an example, the examiner must be more specific as to why events that occurred only during the Veteran's disqualifying second period of service from 1964 to 1968, versus any that previously had occurred during his qualifying initial period of service from 1960 to 1964, is the reason he now has PTSD. If, for whatever reason, this examiner is unavailable to provide this further comment (supplemental opinion), then have someone else do it that is qualified to make this necessary determination. In this eventuality, however, the Veteran may need to be reexamined, but this is left entirely to the designee's discretion. *Should either examiner determine that another examination is required, the Veteran is hereby advised of his responsibility to report for any additional examination and cooperate fully by providing any necessary additional information regarding his claimed stressful incidents in service and the problems with his knees and low back during service and during the many years since. Failure to provide the required level of information and to report for any additional VA examination, without good cause, may result in denial of his claims, as it would require considering them based on the existing evidence of record. 38 C.F.R. § 3.655 (2012). 5. Then readjudicate these remaining claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran another supplemental statement of the case (SSOC) and give him time to submit additional evidence and/or argument in response to it before returning the file to the Board for further appellate consideration of these claims. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2011). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).