Citation Nr: 1328243 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 05-37 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and bipolar disorder. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from February 1984 to February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of June 2004. In January 2008, the Veteran testified at a hearing before a Veterans Law Judge who is no longer with the Board. In a decision dated in February 2009, the Board denied the appeal. The Veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In an April 2010 joint motion for remand (JMR) filed with the Court, the parties (the Veteran and the VA Secretary) requested that the Board decision be vacated and remanded; an April 2010 Court order granted the joint motion. Pursuant to the JMR, the Board remanded the appeal in January 2010. In July 2012, the appellant appeared at a videoconference hearing held before the undersigned. After that, the appeal was again remanded in November 2012. The issue of service connection for an acquired psychiatric disability 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. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's current thoracolumbar spine disability, diagnosed as spondylosis and intervertebral disc syndrome, is of service onset. CONCLUSION OF LAW Service connection for a thoracolumbar spine disability, diagnosed as spondylosis and intervertebral disc syndrome, is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants service connection for a low back disability. As this represents a complete grant of the benefit sought as to that issue, no discussion of VA's duty to notify and assist is necessary. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1110, 1112(a), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may 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). To establish service connection, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that her current low back disability is the result of having injured her back during a 15-mile march in April 1984 and from lifting heavy mailbags while she was a postal clerk from 1984 to 1986. She contends that she was treated for her back pain during service with Motrin, and placed on a physical profile for her low back. She maintains that she has continued to experience low back symptoms since service discharge in February 1987. Service treatment records show that in January 1985, the Veteran's complaints of symptoms including back pain were diagnosed as a urinary tract infection. In October 1986, she reported that her abdominal or menstrual cramps were accompanied by low back pain. Otherwise, there are no complaints of back pain shown in the service treatment records, nor do service treatment records or service personnel records reveal any physical profiles. However, the Veteran testified at her Board hearing that while assigned as a postal clerk during service, she went on a number of TDY assignments to assist other units who were experiencing temporary personnel shortages. Although not shown in her personnel records, there is a notation in a January 1985 record that she "may go to Germany with her company." Additionally, the record does not include a separation examination; therefore, the status of her back at separation is unknown. On a VA examination in April 2013, the Veteran was diagnosed as having a thoracolumbar spine disability, diagnosed as spondylosis and intervertebral disc syndrome. She reported the onset of low back pain during a rucksack march during basic training, and while carrying and delivering sacks of mail. She was treated with Motrin, and profiled on two occasions. The examiner concluded that the Veteran's low back disability was less likely than not incurred in or caused by in-service injury, event, or illness. The examiner noted that the in-service documented episodes of low back pain were not of primary back pathology. Regarding her credible complaints of back pain with activities requiring heavy exertion with the back, there was no indication of any significant injury to the anatomic components to the back which could lead to chronic back conditions. The examiner explained that muscular overuse is a known cause of musculoskeletal pain, but the pain does not necessarily indicate pathology in the back or condition which could lead to back pain in the future. Moreover, there was no documentation of any treatment or restricted duty profile in the service treatment records. With the lack of any identifiable back pathology, the "back pain" in the service treatment records due to referred pain from other conditions, and the lack of service treatment records documenting restricted duty, it was less likely than not that a back condition diagnosed after service was related to miliary service. In evaluating the probative value to be assigned to this medical opinion, the Board notes that the opinion was based largely on the absence of in-service documentation of primary back pain. However, the Board specifically finds that the Veteran's complaints of back pain during and after her nearly two years of duty as a mail clerk are entirely credible. Moreover, the Board finds her description of the duties involved, including the lifting of mailbags weighing up to 80-100 pounds, often twisting the back at the same time while shifting them, to be entirely consistent with her postal work duties, and with the onset of low back pain. The fact that "muscular overuse" is not "necessarily" associated with back pathology does not rule out an association, and the examiner's only other rationale was the absence of documentation in the service treatment records. In July 2013, a letter was provided from the a VA nurse practitioner who identified herself as the Veteran's primary care provider since 2008, who stated that X-rays of the Veteran's low back showed degenerative process, which could have been caused by her job as mail carrier while on active duty. A June 2013 letter from the Veteran's primary physician opined that the Veteran could have had lower back problems form carrying 80 to 100 pound mailbags while on active duty. While both of these opinions were based solely on the Veteran's self-reported history, the Board finds this history to be credible. Thus, there is credible evidence of in-service back injury, as well as of continuity of symptomatology after discharge from service. Medical evidence is not categorically required when the determinative issue involves either medical etiology or diagnosis but rather such issue may, depending on the facts of the case, be established by competent lay evidence under 38 U.S.C. § 1154(a). Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Veteran's back disability is a chronic disability. In this regard, spondylosis is defined as "degenerative spinal changes due to osteoarthritis." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1780 (31st ed. 2007). The Veteran is competent to state that she had back pain in service, and to report continuity of symptomatology after service. Thus, there is credible, competent evidence of in-service injury, in-service symptoms, and of continuity of symptomatology after discharge. There is also medical evidence of a current diagnosis. As to the evidence of a nexus, both the VA examination and the opinions from the VA treatment providers are less than ideal. The only ultimately medical conclusion of the VA examiner is that muscular overuse is not "necessarily" associated with back pathology. On the other hand, the VA treatment providers concluded only that the Veteran's current back disability "could be" related to her military postal service duties. Both of these fall short of clearly establishing the etiology, from a medical perspective. Nevertheless, given the Veteran's credible testimony of in-service repetitive lifting of heavy mail bags, as well as in-service symptoms; her credible testimony of continuity of symptomatology; her current diagnosis of a chronic back disability; and the medical evidence that the in-service duties could have caused her back condition, are sufficient to place the evidence in relative equipoise. In such circumstances, with the resolution of doubt in the Veteran's favor, service connection for a low back disability, diagnosed as spondylosis and intervertebral disc syndrome, is warranted. See 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a back disability, diagnosed as thoracolumbar spine spondylosis and intervertebral disc syndrome, is granted. REMAND This case was remanded in November 2012, and after development was accomplished and a supplemental statement of the case was furnished in June 2013, the case was returned to the Board in late June 2013. However, shortly thereafter, the Veteran sent in statements and evidence, in response to the supplemental statement of the case. This evidence included identification of potentially relevant medical evidence, including outpatient psychiatry notes dated on January 7, 2013, and June 19, 2013. The evidence obtained in connection with the remand development included VA treatment records, but dated only to November 2012. She also stated that she was attempting to obtain additional medical statements. In an undated statement received at the Board on August 6, 2013, the appellant said that she was sending the final attachment for her case; she enclosed a copy of a July 2013 medical statement concerning her back, which was discussed in the above decision addressing that issue. However, also received at the Board on August 6, 2013, was another statement from the Veteran, dated August 2, 2013, in which she said that she had two other documents to be submitted. On of these had to be filled out by her physician, who she was to see on September 3, 2013. She said she would provide "that" information after the doctor's appointment. She said that the second document would be sent as soon as possible. Unfortunately, she did not identify which issue these documents referred to, and because the statements were received on the same day, and one was undated, it cannot be assumed that the statement referring to her "final attachment" was sent after the August 2, 2013, statement in which she identified additional evidence she wished to submit. In this regard, the only medical evidence received after August 2, 2013, was dated in July 2013, whereas she indicated in her August 2, 2013, statement that the other documents still had to be prepared. For these reasons, it must be ensured that these documents are associated with the claims file, unless the Veteran clarifies that they will not be submitted, or are no longer relevant. This information from the Veteran was received at the Board within 90 days of the transfer of the file to the Board, and before a final Board decision was rendered. 38 C.F.R. § 20.1304(a) (2012). Therefore, the file must again be remanded so that the evidence that the Veteran states she wishes to have considered in her appeal can be obtained; in particular, the identified VA psychiatric treatment records can only be obtained by remand. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA mental health clinic and/or psychiatry service records dated from January 2013 to the present, to specifically include identified records of treatment on January 7, 2013, and June 19, 2013. 2. Inform the Veteran that she should submit evidence identified in her statement dated August 2, 2013, to the RO/AMC, if it relates to the remaining issue of service connection for an acquired psychiatric disability. This consists of two documents she intended to obtain, one of which she was to obtain following a September 3, 2013, medical appointment. Give her a specific period of time to respond. 3. After completion of the above and any additional development deemed necessary, the RO should review the claim for service connection for an acquired psychiatric disability, to include bipolar disorder and PTSD. If the claim is denied, the Veteran and her representative should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs