Citation Nr: 1343368 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-38 387 ) 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 disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial rating in excess of 50 percent from June 13, 2008, for a generalized anxiety disorder, posttraumatic stress disorder with depressive features (acquired psychiatric disorder). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that, after filing a timely notice of disagreement, the filing of a timely Substance Appeal may not be needed to perfect an appeal). The claim of service connection for tinnitus and the claim for a higher evaluation for an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The most probative evidence of record shows that the Veteran's low back disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSION OF LAW A low back disability was not caused or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1116, 1154(a), 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, obtaining a medical opinion. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). In this regard, the Board finds that a letter dated in July 2008, prior to the June 2009 rating decision, provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letter as well as the rating decision, the statement of the case, and the supplemental statement of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and his post-service records from Winter Park Hospital, Dr. William Silverman as well as from the Tampa and Orlando VA Medical Centers. The record also shows that the Veteran was afforded a VA examination in November 2008 and that examination is adequate to adjudicate the claim. The Board has reached this conclusion because after a review of the record on appeal and an examination of the claimant the examiner provided an opinion as to the diagnosis and origins of the Veteran's current low back disability which opinion was based on citation to relevant evidence found in the claims file. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (holding that examination reports are adequate when they sufficiently inform the Board of the examiner's opinion on a medical question and the essential rationale for that opinion). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claim's folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The Veteran claims, in substance, that his low back disability either pre-existed military service and was aggravated by his service or was directly caused by the documented injuries he sustained while on active duty. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a) such as arthritis. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For purposes of service connection pursuant to § 1110 and § 1131, a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b). "Noted at entrance" means detected on induction examination, not just history of pre-service existence recorded at the time of the examination. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In this regard, on the July 1968 enlistment examination the Veteran answered yes to a question as to whether he had back trouble of any kind. He thereafter reported that he had pulled a muscle in his back two years ago in a motorcycle accident as well as last month. However, the examination of the spine was normal. Accordingly, the Board finds that a spine disability was not "noted" at entrance. It follows that the presumption of soundness attaches with respect to the Veteran's spine. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). In this case, although the Veteran has provided a history of a pre-service spine injury, there is no medical evidence showing a spine injury or disability prior to the Veteran's entry into service. The Veteran's own reported history is not sufficient to clearly and unmistakably demonstrate that the disability pre-existed service. More importantly, the Veteran's service treatment records (STR) document several complaints related to the spine. Accordingly, the Board does not find that it has been shown by clear and unmistakable evidence that the Veteran's spine disability was not aggravated in service. As such, the Board finds the presumption of soundness has not been rebutted and the claim for a spine disability is a claim of service connection (as opposed to aggravation). Direct Service Connection As to a current disability, the post-service record shows the Veteran being diagnosed with lumbar spine sciatica, arthritis, degenerative disc disease, a strain, and osteoporosis. See, for example, private treatment record dated in February 1999, September 2003, and October 2003; VA examination dated in November 2008. As to establishing in-service incurrence, a September 1968 STR documented the Veteran's complaints of back pain since he fell down the stairs the prior day but no disorder was diagnosed. Thereafter, a July 1969 STR documented the Veteran's complaints of low back pain and diagnosed a contusion. Moreover, the Board finds that the Veteran is both competent and credible to report on what he can see and feel such as observable symptoms of a low back disability (i.e., pain, limitation of motion, etc.) since the 1968 fall and 1969 contusion while on active duty even when not documented in his subsequent medical records because these symptoms come to him through his own senses. See Davidson, supra. The remaining question is whether the current disability is related to the Veteran's period of active duty service. There is only one medical opinion of record which addresses this question. The November 2008 VA medical examiner opined that the Veteran's current low back disabilities were less likely as not related to his military service because they seemed secondary to many years of decreased bone formation related to the abuse of nicotine as opposed to related to his injury while on active duty. It was also opined that the Veteran's low back osteoporosis takes many years to show and are not a result of a fall. In formulating this opinion, the examiner reviewed the record on appeal and specifically cited to the Veteran's claim that he had had injured his low back on two occasions while on active duty. The Board acknowledges the Veteran's allegations of continued back problems since the injuries in service. Initially, the Board notes that the Veteran is competent to attest to his alleged ongoing back pain. The Board finds the Veteran credible with respect to these allegations, although the Board notes his credibility is somewhat diminished by the lack of consistency between his allegations of ongoing back problems and the March 1973 separation examination report which was negative for complaints, diagnoses, or treatment for residuals of the low back injuries and which shows the Veteran reported that he had had no medical problems while in the Army. In any event, although the Board finds the Veteran competent and credible to attest to ongoing back pain, the Board finds that the November 2008 VA examiner's opinion is more probative with respect to the question of the likelihood of a relationship between the Veteran's current back disability and his military service, given that the Veteran is not competent to address the medically complex question of the etiology of the underlying spine disability that is causing the spine pain. As to service connection for a low back disability under the presumptions found at 38 C.F.R. § 3.309(a), the record does not show the Veteran being diagnosed with lumbar spine arthritis in the first post-service year. Therefore, the Board finds that service connection for a low back disability is not warranted under this presumption. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Accordingly, the Board must conclude that entitlement to service connection for a low back disability must be denied because the weight of the evidence is against the claim. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, 3.307, 3.309. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the most probative evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disability is denied. REMAND As to the claim of service connection for tinnitus, the record shows that the Veteran was provided with a VA examination in October 2008. However, the Board does not find the examination adequate because the opinion was based entirely on negative evidence (i.e., a normal audiological examination at separation as well as the Veteran's statement that he only had a 20 year history of tinnitus which statement he later recanted.). See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Therefore, the Board finds that a Remand to obtain another opinion is required. See 38 U.S.C.A. § 5107A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In this regard, when providing the requested opinion, the examiner should specifically comment on the Veteran's in-service noise exposure working as a mechanic, carpenter, and foreman for 5 years and his post-service employment as a state trooper for 35 years. As to the claim for a higher evaluation for the acquired psychiatric disorder, the record shows that while the Veteran was afforded a VA examination in connection with his claim of service connection in November 2008, it does not show that he was afforded a VA examination in connection with his claim for a higher evaluation. Moreover, VA treatment records since that time, including a June 2010 VA treatment record, reported that he had increased symptoms. Therefore, the Board finds that a Remand to obtain a needed VA examination is required. See 38 U.S.C.A. § 5107A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Caffrey v. Brown, 6 Vet. App. 377 (1994) (holding that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the Veteran that takes into account the records of prior examinations and treatment). Lastly, the Board notes that the Veteran receives ongoing treatment from the Orlando VA Medical Center. However, his post-March 2011 treatment records do not appear in the claims file. Therefore, while the appeal is in remand status these records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Accordingly, these issues are REMANDED to the RO/AMC for the following actions: 1. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of his problems with tinnitus in and since service as well as his current problems due to his service connected acquired psychiatric disorder. He should be provided an appropriate amount of time to submit this lay evidence. 2. Obtain and associate with the claims file, either physically or electronically, all of the Veteran's post-March 2011 treatment records from the Orlando VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 3. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with a VA examination to obtain an opinion as to the origins of his tinnitus. The claims file should be provided to the examiner in connection with the examination. The examiner should conduct all indicated tests and studies deemed appropriate and all clinical findings should be reported in detail. After a review of the record on appeal and an examination of the claimant, the examiner should provide an answer to the following question: Is it at least as likely as not (50 percent probability or more) that the Veteran's tinnitus was caused by military service or has continued since military service. In providing an answer to the above question, the examiner is advised that he cannot rely solely on negative evidence. In providing an answer to the above question, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his tinnitus as well as his in-service noise exposure working as a mechanic, carpenter, and foreman for 5 years as well as his post-service noise exposure working as a state trooper for 35 years. If the examiner cannot provide an answer to the above question, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. In providing an answer to the above question, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 4. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with a psychiatric examination. The claims file should be provided to the examiner in connection with the examination. All indicated tests and studies deemed appropriate by the examiner must be accomplished and all clinical findings should be reported in detail. The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his acquired psychiatric disorder. A Global Assessment of Functioning (GAF) should also be provided. If there was a material change in the severity of the Veteran's acquired psychiatric disorder at any time since June 13, 2008, the examiner should identify the date of this change and provide an opinion as to the severity of the acquired psychiatric disorder before and after the change. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 5. The RO/AMC should thereafter readjudicate the claims. As to the claim for a higher evaluation for the acquired psychiatric disorder, such readjudication should consider if staged ratings are warranted. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). A reasonable period of time should be allowed for response before the appeal is returned to the Board. The Veteran 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). 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. 2012). ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs