Citation Nr: 1513650	
Decision Date: 03/31/15    Archive Date: 04/03/15

DOCKET NO.  09-28 125	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for a low back disability.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for an acquired psychiatric disorder other than PTSD.


REPRESENTATION

Veteran represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

R. R. Watkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1975 to October 1990. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

The Board notes that the Veteran has an array of mental health diagnoses of record, to include PTSD.  The Board has bifurcated the issue as seen on the title page to address service connection for PTSD and service connection for a psychiatric disorder other than PTSD.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed.

The issues of entitlement to service connection for PTSD and an acquired psychiatric disorder other than PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

A low back disability was not manifested during active service, is not related to active service, and arthritis was not manifested within one year from the date of separation from the military.


CONCLUSION OF LAW

A low back disability was not incurred in or aggravated by service and may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).  The VCAA applies to the instant claim. 

The RO provided pre-adjudication VCAA notice by a letter dated in July 2008.  The Veteran was notified of the evidence needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim.  

VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim.  Service treatment records (STRs), post-service treatment records, and lay statements have been associated with the record.  

The Veteran was afforded a VA examination in May 2013 to determine the nature and etiology of his claimed low back disability.  As the examination included a review of the pertinent medical history, clinical findings, and diagnoses, and was supported by medical rationale, the Board finds that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  

As the Veteran has not identified any additional evidence pertinent to the claim for service connection for a low back disability and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.



II.  Service Connection

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  

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. §§ 1110,1131; 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 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 addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. 
§§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).  

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.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)).

As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy.  A review of his personnel records shows that he had overseas service in Germany and Thailand.  Furthermore, his DD 214 lists his primary specialty as metal fabricating technician and base welder.  The Veteran did not receive a combat metal.  Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) are not applicable.

In May 2013, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed low back disability.  The VA examiner diagnosed a chronic thoracic spine strain, chronic lumbar spine strain, and osteoarthritis of the lumbar spine with degenerative disc disease.  In March 1981, the Veteran was seen for a low back condition in-service for lower back pain after he rolled out of his bed.  The VA examiner reported that the Veteran's lower back disability began in 1994 when he was unloading metal and pipes. The VA examiner opined that the Veteran's low back disability was less likely than not incurred in service.  The VA examiner elaborated that the Veteran denied chronic low pain at separation.

The Board has considered the Veteran's statements regarding his lower back disability.  The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history.  See Layno, 6 Vet. App. at 465.  In addition, 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; (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.  See Jandreau, 492 F.3d at 1377.  The Board finds the Veteran to be competent and credible.  However, the Board does not find his statements to be probative as the VA examiner's opinion, which was based on an extensive review of the record, a thorough examination, and the VA examiner's medical expertise.

The Board recognizes that the Veteran was seen for low back pain in March 1980.  However, arthritis was not "noted" or identified during service.  Similarly, there is no evidence that suggests that he had characteristic manifestations sufficient to identify a chronic disease during service.  See 38 C.F.R. § 3.303(b).  Rather, the July 1985 service examination disclosed that the spine and musculoskeletal system were normal.  Similarly, the August 1990 retirement examination disclosed that the spine was normal and he denied a history of recurrent back pain.

In June 1991, the Veteran was admitted for inpatient treatment for a different issue.  At his admission physical examination, his back was evaluated as normal.  The Veteran's post service treatment records indicate that he did not seek treatment for back pain until 2007.  By the Veteran's own admission, at his May 2013 VA examination, he did not experience chronic back pain until 1994 after he unloaded pipes and metal.  The evidence is against a finding that arthritis manifested during service or within one year of separation.  Therefore, service connection for a low back disability may not be granted on a presumptive basis.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).  

In sum, for the reasons expressed above, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a low back disability.  Therefore, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise.  The benefit sought on appeal is accordingly denied.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

Entitlement to service connection for a low back disability is denied.





REMAND

The Veteran's claimed in-service PTSD stressor is that his close friend was shot down over Laos, while they were stationed in Thailand.  The Veteran's stressor was verified by the AOJ.  

In May 2008, the Veteran submitted an opinion from Mr. K., a licensed mental health counselor, that stated the Veteran met the Statistical Manual of Mental Disorders, Fourth Edition of the American Psychiatric Association (DSM-IV) criteria for PTSD.  Additionally, the Veteran has numerous positive PTSD screenings in his VA treatment records.

In May 2013, the Veteran underwent a mental health examination for disorders other than PTSD.  The Veteran was diagnosed with generalized anxiety disorder.  The VA examiner did not render an opinion regarding whether it was at least as likely as not that the Veteran's generalized anxiety disorder was incurred in service.

In a November 2014 Initial PTSD Disability Benefits Questionnaire, the Veteran was diagnosed with major depressive disorder, but the VA examiner determined that the Veteran did not met the diagnostic criteria for PTSD, but diagnosed chronic anxiety and depression.  The VA examiner did not provide an opinion regarding whether it was at least as likely as not that the Veteran's major depressive disorder was incurred in service.

Based upon the forgoing, the Board finds that a remand is necessary to determine whether the Veteran has PTSD and the etiology of his acquired psychiatric disorders.

Accordingly, the case is REMANDED for the following actions:

1.  Schedule the Veteran for a VA psychiatric examination with a VA or contract psychiatrist or doctoral level psychologist to determine the nature and etiology of his acquired psychiatric disorder.  The VA examiner is requested to specifically diagnosis the following:

a) Determine whether the Veteran meets the DSM-IV criteria for a diagnosis of PTSD.  If he does, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's PTSD is based on his in-service stressor.  The requested opinion should take into consideration all relevant evidence from the Veteran's claim file including relevant treatment records.  

b) Offer an opinion, consistent with sound medical principles and in consideration of the Veteran's specific contentions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any non-PTSD psychiatric disorder, to include major depressive disorder and generalized anxiety disorder, is related to service.  An opinion should be rendered for each psychiatric disorder with which the Veteran is diagnosed.  

The examiner is asked to provide a rationale for the opinions rendered.  

2. After completing the above development, the AOJ should readjudicate the Veteran's claims remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity for response.  

The Veteran has the right to submit additional evidence and argument on the 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 2014).




______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs