Citation Nr: 1329786 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 10-01 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable initial disability rating for mechanical low back strain. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from July 2003 through June 2007 and from May 2011 through February 2012, to include service in Iraq, where he engaged the enemy in combat. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied service connection for PTSD and granted service connection for mechanical low back strain, effective from July 1, 2007 with a noncompensable initial disability rating. A timely Notice of Disagreement (NOD) contesting the denial of service connection for PTSD and the assigned initial disability rating for the low back disability was received from the Veteran in April 2008. After a Statement of the Case addressing those issues was provided in November 2009, the Veteran perfected his appeal later that month, via VA Form 9 substantive appeal. The Veteran testified during a June 2012 Board hearing. A transcript of this testimony is associated with the claims file. This appeal also initially included the issue of the Veteran's entitlement to a compensable initial disability rating for left septal deviation due to broken nose, status-post septoplasty. However, the appeal as to that issue has not been perfected via substantive appeal. Accordingly, that issue does not remain before the Board on appeal. The issue of entitlement to a compensable initial disability rating for mechanical low back strain 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. The Veteran's reported stressors are consistent with his active duty service, which included service in Iraq, where he sustained injuries while engaging the enemy in combat and was decorated with the Purple Heart and the Combat Action Ribbon. 2. The Veteran has PTSD that has been shown as being related to his in-service stressors. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1131, 1153, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In relation to the issue of the Veteran's entitlement to service connection for PTSD, the Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159. Nevertheless, given the favorable action taken below as to that issue, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. II. Service Connection for PTSD Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran 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 (1990); 38 U.S.C.A. § 5107(b). The evidence necessary to establish the occurrence of a stressor during service to support a claim for PTSD can vary, depending on whether the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). In instances such as this case, where the evidence establishes that the veteran was engaged in combat with the enemy or was a prisoner of war (POW), and the claimed stressor is related to combat or POW experiences (in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the veteran's service), the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. During his hearing and psychiatric treatment, the Veteran consistently reported in-service stressors related to service in Iraq, which include stress from seeking out and clearing improvised explosive devices (IEDs) and a September 2006 enemy RPG attack in which he sustained shrapnel injuries. Indeed, the service records in the claims file document that the Veteran served in Iraq and that he did perform the duties described. Also consistent with the Veteran's assertions, the service treatment records show that the Veteran sustained injuries from an enemy RPG attack in September 2006 and also engaged the enemy in combat on multiple other occasions. These records also show that the Veteran was decorated with the Purple Heart and the Combat Action Ribbon in connection with such service. The foregoing service records not only substantiate the Veteran's combat involvement; but also, corroborate the occurrence of the Veteran's reported stressors. Under the circumstances, service connection is warranted in this case if the evidence shows a PTSD diagnosis that is related to the Veteran's in-service stressors. July 2007 treatment records from the Vet Center reflect that the Veteran began treating at that time for reported symptoms that had been present since 2007, including: frequent intrusive memories; flashbacks precipitated by helicopter noises; being jumpy on a daily basis, particularly in public; having a tendency to check people's hands while out in public; avoiding large crowds; being nervous on the road, particularly where the road had potholes or deformations in the pavement; being startled easily by sudden loud noises; isolative behavior marked by socializing infrequently; avoiding discussions about his deployment; feeling angry and disappointed when he thinks about his experience in Iraq; sleep difficulties marked by nightly recurring dreams and awakenings; irritability and being easily agitated; wanting to hit people and having outbursts of anger; diminished short term memory and concentration; and avoidance of activities that he previously enjoyed, such as going to the beach and swimming. A mental status examination performed at that time revealed mood disturbances marked by anxiousness and guardedness. A multi-axis diagnosis rendered by the panel of evaluating psychologists and therapists included an Axis I PTSD diagnosis. VA treatment records dated August 2008 show that the Veteran was followed at that time for ongoing symptoms of disrupted sleep; irritability; instances of road rage; being guarded and watchful; intrusive thoughts; hypervigilence; and flashbacks precipitated by helicopters and loud and sudden noises such as fireworks. An evaluating social worker opined during an intake examination that the Veteran appeared to meet the diagnostic criteria for PTSD. Upon clinical psychiatric evaluation, the evaluating VA psychiatrist appears to concur with the PTSD diagnosis. Based upon the foregoing evidence, the Board finds that the elements for service connection for PTSD have been met in this case, and the Veteran is entitled to service connection for PTSD. In so holding, the Board is mindful of VA examinations performed in October 2007 and January 2009, which purportedly revealed no specific psychiatric diagnoses. The Board also notes, however, that neither examination was performed in conjunction with a review of the claims file, which includes the aforementioned Vet Center and VA diagnoses. Given the VA examiners' inability to consider the Vet Center and VA treatment records and to take them into account in rendering their diagnoses, conclusions, and supporting rationale, the probative value of the VA examiners' diagnoses and opinions are severely diminished. Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion may include the physician's access to the claims file and the thoroughness and detail of the opinion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches; as true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators). By contrast, the July 2007 and August 2008 diagnoses and opinions provided by the Vet Center and treating VA psychiatrist are based upon a complete psychiatric and social history that was credibly reported by the Veteran and is substantiated in the service records. Moreover, the Board notes, the PTSD diagnoses rendered in these opinions appears to be fully supported by the noted symptomatology and history. For these reasons, the Board assigns far greater probative weight to these opinions than it does to the VA examiners' October 2007 and January 2009 opinions. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (the Board's duty is to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another). In view of the foregoing, the Veteran is entitled to service connection for PTSD. To that extent, this appeal is granted. ORDER Entitlement to service connection for PTSD is granted. REMAND Regarding the issue of the Veteran's entitlement to a compensable initial disability rating for mechanical low back strain, the Board notes that the current disability rating contemplates only the extent of lost thoracolumbar motion but does not consider the extent of any associated neurological manifestations. To the extent that the evidence shows that the Veteran's low back disability has been manifested by neurological symptoms, separate disability ratings for those manifestations, in addition to the rating based upon lost thoracolumbar motion, are appropriate. Here, the Veteran reported during a September 2009 VA spine examination that he was experiencing low back pain that radiated up to his mid-back and down to both knees. He also reported numbness that was present in both lower extremities. Indeed, neurological testing performed during the examination revealed positive objective findings which included positive heel and toe walk and positive tandem walk. Despite the Veteran's apparent neurological complaints and the positive neurological findings from the examination, the VA examiner did not provide any diagnosis, opinion, or discussion relating to such complaints and findings. During his June 2012 hearing, the Veteran continued to complain of radiating pain, numbness, and discoloration in both legs and feet. He also reported hip pain which he apparently associates with his low back disability. This testimony appears to suggest that the Veteran may be experiencing persistent neurological manifestations that may be related to his low back disability. In view of the foregoing, the September 2009 VA examination is inadequate for the purposes of determining the nature and etiology of any neurological manifestations of the Veteran's low back disability. Also, more than four years have passed since the Veteran's VA spine examination and his hearing testimony appears to suggest that his low back disability has worsened since that time. Accordingly, the Veteran should be arranged to undergo a new VA spine examination to assess the current severity of his low back disability and to determine whether he has any neurological manifestations of his low back disability. 38 C.F.R. § 3.159(c)(4). Prior to obtaining the examination ordered above, and in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other treatment providers who have rendered treatment for his low back and any neurological symptoms in his hips and lower extremities since August 2012. VA must then make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim for a compensable initial disability rating for mechanical low back strain. This letter must inform the Veteran about the information and evidence that is necessary to substantiate his claim, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a new VA examination of his low back disability, to include any related neurological problems. The Veteran should be advised that it remains his responsibility to report for any scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided treatment for his low back and any neurological symptoms in his hips and lower extremities since August 2012. 2. Obtain records for any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, to determine all manifestations and residuals of the Veteran's service-connected mechanical low back strain. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All appropriate tests and studies, to include x-rays, physical inspection of the spine, thoracolumbar range of motion testing, repetitive motion testing, and neurological testing, should be performed. Upon review of the record and examination of the Veteran, the examiner should describe in detail the demonstrated thoracolumbar ranges of motion (noting any pain that accompanies such motion and specifying the degree at which such pain begins) and all symptomatology that is related to the Veteran's service-connected low back disability. To the extent that the examiner finds neurological manifestations and residuals that are at least as likely as not related to the Veteran's low back disability, the examiner should delineate the nerve groups involved, determine whether paralysis of the identified nerve groups are complete or incomplete, and if paralysis is incomplete provide an opinion as to whether the severity of such neurological manifestation is mild, moderate, moderately severe (this category is available only for involvement of the sciatic nerve group), or severe. The examiner should also describe any functional loss pertaining to the low back disability that is due to pain or weakness, and to document all objective evidence of those symptoms. In addition, the examiner should provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use. The examiner should also document, to the extent possible, the frequency and duration of incapacitating episodes (i.e., acute signs and symptoms of intervertebral disc syndrome that have required bed rest prescribed by a physician and treatment by a physician). Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examinations sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issue of entitlement to a compensable initial disability rating for mechanical low back strain should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs