Citation Nr: 1318498 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 05-23 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disorder, diagnosed as degenerative arthritis and status-post lumbar discectomy. 2. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to January 1984. These matters are on appeal from a September 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2011, the Board, in pertinent part, denied entitlement to service connection for a low back disorder, diagnosed as degenerative arthritis and status-post lumbar discectomy, and remanded the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD. By rating decision in August 2012, the Appeals Management Center (AMC) in Washington, D.C., granted service connection for PTSD. The United States Court of Appeals for the Federal Circuit has held that an award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Therefore, the matter of entitlement to service connection for PTSD is not before the Board. Notwithstanding this award of service connection, the matter of entitlement to service connection for an acquired psychiatric disorder other than PTSD remains on appeal. The Veteran appealed the denial of service connection for a low back disorder to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court issued an order that granted a Joint Motion for Partial Remand (Joint Motion) filed by counsel for both parties, vacated the Board's June 2011 decision with respect to the issue of service connection for a low back disorder, and remanded that matter to the Board for action in compliance with the Joint Motion. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action on his part is required. REMAND Low Back Disorder The record reflects that the Veteran had complaints of low back pain after falling and sustaining a contusion in September 1983. The Veteran has long maintained that he has had ongoing low back pain since that in-service fall. After reviewing all of the evidence of record, the Board denied entitlement to service connection for low back disorder in June 2011. The Board found that a chronic back disorder was not shown during active duty service, within one year of active duty or for many years thereafter, and no current back disorder is shown to be related to service. In pertinent part, the Board relied on the opinion of a March 2010 VA examiner, who stated that the Veteran reported a history of back pain since 1983, which stabilized, and then worsened in 2004. Based on examination, as well as a review of the claims folder, the examiner diagnosed degenerative disc disease of the lumbar spine. The examiner opined that the Veteran's degenerative disc disease was not caused by or a result of a condition treated in service. In providing this opinion, the examiner noted that the injury in active duty was a right flank contusion, and that the Veteran had a normal lumbar spine X-ray study many years after service in May 1992. In the November 2012 Joint Motion endorsed by the Court it was agreed that remand was required because the Board failed to provide an adequate statement of reasons and bases correctly addressing whether the Veteran is entitled to service connection based upon a continuity of symptomatology theory of entitlement, and assessing his lay assertions that he has experienced low back pain since his separation from service. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Arthritis (degenerative joint disease) is listed under 38 C.F.R. § 3.309(a). The Court has held that it is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997). Moreover, the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds that the March 2010 VA examiner's opinion is inadequate for adjudication purposes because while the examiner noted a lack of objective findings of back disorder in a May 1992 VA examination report, he failed to acknowledge the complaints of back pain made by the Veteran at that time. On remand, the examiner is asked to should provide an opinion as to whether the Veteran's low back disorder is, at least as likely as not (a 50 percent or better probability), related to the Veteran's active service. In so doing, the examiner must acknowledge and discuss all the Veteran's lay statements, including that he had back pain on examination in May 1992. Acquired Psychiatric Disorder Other Than PTSD In June 2011, the Board, in pertinent part, remanded the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD. The Board instructed the agency of original jurisdiction (AOJ), in pertinent part, to obtain an opinion as to whether there is a 50 percent or better probability that any acquired psychiatric disorder shown during the period of the appeal, to include PTSD and depression, is etiologically related to the Veteran's service. Thereafter, if the benefits sought remained denied, the AOJ was to issue a Supplemental Statement of the Case (SSOC). Review of the claims file shows that the Veteran underwent a VA psychiatric examination in August 2011. By rating decision in August 2012, the AMC granted service connection for PTSD. This award of service connection for PTSD constitutes a full award of benefits for that issue. See Grantham, supra. However, as correctly pointed out by the Veteran's representative in an April 2013 letter, the matter of entitlement to service connection for an acquired psychiatric disorder other than PTSD remains on appeal. Indeed, the United States Court of Appeals for the Federal Circuit found that two psychiatric disabilities "could have different symptoms and it could therefore be improper in some circumstances for the VA to treat these separately diagnosed conditions as producing only the same disability." Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009). The question of whether two diagnoses have overlapping manifestations is a factual finding. Id. No SSOC was promulgated with regard to the issue of service connection for an acquired psychiatric disorder other than PTSD. Because the August 2011 VA examination report is pertinent to the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, it must be reviewed by the AOJ, and an SSOC furnished if the appeal remains denied. 38 C.F.R. §§ 19.31(b)(1), 19.37(a) (2012). Moreover, under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Given that the AOJ did not comply with the Board's remand instructions, another remand is required. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file and a copy of any pertinent evidence in VVA that is not included in the claims file to the examiner who conducted the March 2010 examination. Based upon the review of the Veteran's pertinent history and sound medical principles, the examiner should provide an opinion, with supporting rationale, as to whether the Veteran's low back disorder is, at least as likely as not (a 50 percent or better probability), related to the Veteran's active service. In so doing, the examiner must acknowledge and discuss the Veteran's lay statements that he injured his back in service and has had back pain since that time, to include during a May 1992 VA examination. The examiner should explain the rationale for the conclusions reached. If the examiner opines that the question cannot be resolved without resorting to speculation, then a detailed medical explanation as to why causation is unknowable must be provided. All findings and conclusions should be set forth in a legible report. If the March 2010 examiner is not available, the claims file and any pertinent evidence in VVA that is not included in the claims file should be reviewed by another physician with appropriate expertise who should be requested to provide the required opinions with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 2. Undertake any other development deemed warranted. 3. Thereafter, re-adjudicate the claims of entitlement to service connection for a low back disorder and entitlement to service connection for an acquired psychiatric disability other than PTSD. If any benefit sought on appeal is not granted to the Veteran's satisfaction, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ MICHAEL A. HERMAN 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).