Citation Nr: 1335001 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-33 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a low back disorder. ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia, that denied the Veteran's claims of entitlement to service connection for PTSD and back pain. The Board observes that the Veteran originally filed his claim as entitlement to service connection for PTSD. However, the Board notes the claims file includes other psychiatric diagnoses to include schizoaffective disorder and depression. The United States Court of Appeals for Veterans Claims (Court) has recently determined that when a claimant makes a claim of entitlement to service connection for a psychiatric disability, he is seeking service connection any acquired psychiatric disability regardless of how those symptoms are labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has changed the issue to entitlement to an acquired psychiatric disorder to include PTSD as reflected on the title page. The issue of entitlement to service connection for an acquired psychiatric disorder 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 preponderance of the evidence is against finding that the Veteran's currently diagnosed low back disability is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A low back disorder was not incurred in or aggravated by service or service-connected disorder. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in February, April, and July 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. A February 2007 letter explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records (STRs) and post-service VA and private treatment records have been associated with the claims file. Additionally, medical records from the Veteran's Social Security Administration (SSA) disability claim have also been associated with the claims file. The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. The Board finds that VA has fulfilled its duty to assist in obtaining such records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). In this case, the Veteran has not been provided a VA examination to determine the nature and etiology of his diagnosed low back disorder. VA need not conduct an examination with respect to the service connection claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case because there is no credible lay evidence of a back injury in service, or back symptoms during or since service, and no competent evidence indicating that a current back disorder is related to service. Therefore, a VA examination to evaluate his claimed back pain is not warranted. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria - General Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, 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 between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease 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). However, '[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.' Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Analysis The Veteran seeks service connection for a back disorder, claimed as back pain. After a careful review of the evidence of record the Board finds that the preponderance of the competent evidence is against a finding of service connection. The evidence clearly shows that the Veteran has a diagnosis of a back disorder. Thus, the crucial inquiry is whether the Veteran's current low back disorder is related to any incident in service. For the reasons and bases set forth below, the Board concludes they are not. The Veteran asserts he hurt his back because he had to carry a pack that weighed half as much as he did. He claimed that there is no treatment records during service because when he reported to sick call the medic did not do an examination, but instead gave him pain pills and sent him back to work. Service treatment records (STRs), including a March 1970 separation examination report and medical history report, are negative for any complaints, treatment, or diagnosis of a back disorder. Post-service treatment records include an August 1994 VA psychiatric discharge note which indicated the Veteran had complained of low back pain. A CT scan dated in July 1994 revealed mild diffuse disc bulging at the level of L4-L5, contiguous 5 mm cut at the level of L3-L4, L4-L5, and L5-S1. A September 1994 SSA psychiatric review included a diagnosis of PTSD. In an April 1998 application, the Veteran asserted he has chronic low back pain which began in 1975. The Veteran underwent a private rheumatology evaluation in January 1998. The Veteran reported he has had intermittent neck and low back pain since 1990. After a physical examination, the diagnosis was mild degenerative spondylosis without symptoms of radiculopathy. In an April 2001 private treatment record, the Veteran complained of low back pain. He reported his pain history began in 1991 or 1992 when he went to bend over and felt a "pop" involving the lower back. The pain was so severe that he was unable to straighten. He was evaluated at the VA medical Center in Tuskegee, Alabama and told there was a bulging disc and degenerative disc disease noted involving the lumbar spine. He was treated conservatively with medications and physical therapy. The Veteran underwent a microscopic discectomy in November 2004. Additional VA and private treatment records dated after 1994 also include complaints of low back pain, but without discussion of etiology. Based upon the evidence of record, the Board finds that a chronic back disorder was not shown to have developed as a result of an established event, injury, or disease during active service. Objective evidence of a diagnosis of chronic back disorder is first shown in 1994, more than 24 years after separation from active service and cannot be presumed to have been incurred in service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Significantly, the record also includes no competent medical opinion establishing a nexus or medical relationship between a current back disorder diagnosed post-service and events during the Veteran's active service. Neither the Veteran have presented, identified, or alluded to the existence of, any such opinion. Consequently, the Board finds that entitlement to service connection for a current back disorder is not warranted. The Board also considered the Veteran's reports that he experienced a continuity of low back problems since active service. Credibility, however, is an adjudicative and not a medical determination. The Board has 'the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.' Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the 'inherent characteristics' of the Veteran's current statements as to the circumstances of his in-service injury and continuity of back problems are inconsistent with the objective medical record and the Veteran's own contemporaneous statements. In that regard, the Board notes that the Veteran's service treatment records includes no complaints of low back pain and a physical examination of the Veteran's back was normal at separation. In fact, the Veteran specifically denied recurrent back pain on separation in a report of medical history. After service, there is no indication that the Veteran sought treatment for back problems for over 20 years. According to the medical evidence of record, the Veteran first report back problems, in June 1994. There are no additional treatment records dated between separation and June 1994 when the Veteran sought treatment for back pain. Furthermore, as noted above, there are multiple statements in his treatment records concerning when the Veteran's back pain started. In the January 1998 private rheumatology evaluation, the Veteran reported he has had intermittent neck and low back pain since 1990, or 20 years after separation from service. Finally, in an April 2001 private treatment record, the Veteran reported his back pain history began in 1991 or 1992, more than 20 years after separation from service. Given the consistency of the reports offered to health care providers dating the onset of his symptoms to the period between 1990 and 1992, the Board must find his statements to VA placing the onset of his symptoms to service or even within just a few years thereafter not credible. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board is not relying merely on a general absence of complaints in service. Rather, the Veteran specifically denied back problems at the time of his separation examination in March 1970. Moreover, physical examination of the back at separation was negative. In addition, during service, the Veteran sought treatment for additional issues, including treatments for skin problems. The Board finds it reasonable to conclude that had the Veteran been experiencing on-going back problems that he would have reported these problems at the same time as other complaints. Most significantly, as noted, treatment records contain numerous contrary reports that his symptoms did not began until approximately 20 years after service. In essence, the Board does not find the Veteran's contentions regarding a continuity of symptoms since service for his claimed back disability is credible. The grant of service connection requires competent and credible evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains records of medical treatment related to the Veteran's back, it does not contain reliable evidence which relates this claimed disability to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative and credible than the Veteran's more recent statements which have been found not credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Absent reliable lay or medical evidence relating these claimed disabilities to service, the Board concludes that the claim of entitlement to service connection for a low back disorder must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a low back disorder is denied. REMAND Unfortunately, further development is necessary in the instant case. The Veteran contends, in essence, that he has PTSD due to traumatic experiences in service, specifically a personal assault while in Germany. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. 38 C.F.R. § 3.304(f) (2012). The Board observes the regulations now provide that VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran'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. 38 C.F.R. § 3.304(f)(3) (2012). 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. 38 C.F.R. § 3.304(f)(3) (2012). In this regard, the Board observes that the previously provided notice letters do not provide the required notice with respect to PTSD claims based on personal assault. Pursuant to the VCAA, the Board observes that the Veteran should be sent a letter that advises him as required by 38 C.F.R. § 3.304(f)(3) and allowed the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. The Veteran asserts he has a psychiatric disorder due to stressful situations during active service. VA treatment records indicate a diagnosis of schizophrenia, with depressive and paranoid features in December 1994. In an April 2007 statement, the Veteran reported that his schizophrenic disorder started in January 1969 due to racial tension in Germany. He asserted he was gassed by white GIs and he became a chain smoker because of stress in military service. In a June 2007 statement, the Veteran claimed that in December 1969, while he was trapped in a room, a gas bomb was placed at the base of the door and lit. Smoke came into the room under the door. Another soldier cut a wire holding the door and the Veteran was able to escape. He asserted that the gas had temporarily blinded him and peeled the skin off the exposed portion of his body. He was taken to the infirmary and washed down to remove any remaining gas and released back to the dorms. This took place at Gilenhousing, Germany while he was assigned with the 3rd Infantry Division, HQ Co, 3rd Battalion. In July 2007, the U. S. Army and Joint Services Records Research Center (JSRRC) determined there was insufficient information to allow for a meaningful search of the Marine Corps or National Archives and Records Administration (NARA) records. In November 2007, the Veteran submitted a statement in which he asserts that the incident was documented by the Criminal Investigative Division (CID) in November 1969. A July 2009 formal finding of lack of information required to corroborate stressors with a claim for service connection of PTSD indicates there were no other attempts, beyond the JSRRC search, to verify the Veteran's claimed stressor. As the Veteran has reported a stressor with required specificity to include time, place, and unit, the Board finds additional steps must be taken to attempt to verify the Veteran's claimed personal assault. Additionally, as the Veteran has reported that his stressful incident was investigated by authorities, the Board finds that the U.S. Army Criminal Investigation Command, U.S. Army Crime Records Center, and any other appropriate records depository should also be contacted for any information concerning the alleged incident. The RO/AMC should then schedule the Veteran for a VA psychiatric examination by a VA psychiatric professional to determine whether the Veteran suffers from PTSD as a result of a verified or corroborated stressor or currently has another acquired psychiatric disorder related to his time on active duty. The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative with the notice required in 38 C.F.R. § 3.304(f)(3) and an appropriate opportunity to respond. 2. Contact the U.S. Army Criminal Investigation Command, U.S. Army Crime Records Center, and any other appropriate records depository, and request that it conduct a search for any military police and CID records related to the Veteran's claimed incident, occurring approximately between November and December 1969, while attached to the 3rd Infantry Division, HQ Co, 3rd Battalion, in Gilenhousing, Germany. Any negative response should be in writing and associated with the claims folder. 3. Obtain and associate with the claims file relevant treatment records, to include VA and Vet Center treatment records not already associated with the claims file. 4. After all of the above development is completed, schedule the Veteran for a VA examination, to be performed in-person by a VA psychiatrist or psychologist, to determine if a diagnosis of PTSD is warranted based on the verified/corroborated stressor and/or if any other acquired psychiatric disability is related to active service or any incident of active service. The Veteran's claims file, to include a copy of this remand should be made available to and reviewed by the examiner. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 5. The AOJ should then re-adjudicate the claim. If the claim is denied, the Veteran and his representative should be issued a supplemental statement of the case, and be 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs