Citation Nr: 1515906 Decision Date: 04/13/15 Archive Date: 04/21/15 DOCKET NO. 13-19 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from July 1972 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied service connection for PTSD and declined to reopen a previously denied claim for service connection for a low back disability. In an October 2013 decision, the Board reopened the Veteran's claim for a low back disability and remanded it for further development. The Veteran's claim for service connection for PTSD was also recharacterized as service connection for an acquired psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), and it, too, was remanded for development. A portion of the Veteran's records are contained in the Virtual VA electronic claims file. FINDINGS OF FACT 1. The Veteran's low back disability is not etiologically related to service. 2. PTSD has not been attributed to a verified stressor in service, and additional diagnosed psychiatric disorders are not attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 2. The criteria for service connection for an acquired psychiatric disorder, including PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2014). Here, the Veteran was provided with the relevant notice and information in an October 2011 letter prior to the initial adjudication of his claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claims. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and previously identified private treatment records have been obtained and associated with the claims file. Notably, the Board remanded these claims in October 2013 to obtain additional VA and private treatment records identified by the Veteran, as well records pertaining to Workers' Compensation claims he referenced during his appeal. His VA records, including those pertaining to a June 2012 hospitalization identified in the remand, have been obtained. In November 2013, the RO requested that the Veteran provide sufficient information and authorization to obtain any outstanding private treatment records and Workers' Compensation records pertinent to his claim. However, the Veteran did not respond to this request. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed conditions. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the above development of the Veteran's claims, there has been substantial compliance with the Board's October 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict compliance with the Board's remand directives is required under Stegall). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. 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) (2014). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). Claims for chronic conditions listed in 38 C.F.R. § 3.309(a) benefit from a somewhat more relaxed evidentiary standard. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the "nexus" requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology." Id. A. Low Back Disability VA and private treatment records generated during the appeal period reflect diagnoses of lumbar spine degenerative disc disease. Therefore, element (1) of service connection, a current disability, has been met. In addition, service treatment records show the Veteran was seen in May 1973 for complaints of pain in the back, as well as the neck and shoulders, following a hit-and-run accident. Therefore, element (2), an in-service injury, has also been met. With respect to element (3), a link between the current disability and the injury in service, there are medical opinions in the record addressing etiology. According to the U.S. Court of Appeals for Veterans Claims, "the probative value of medical opinion 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 the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. In a September 2010 opinion, Dr. M.C. stated that, based on a review of the Veteran's records, he could not exclude the 1973 motor vehicle accident to be the cause of the Veteran's chronic back pain. In November 2011, he offered an additional opinion, stating that the 1973 accident was likely to be the cause of the Veteran's chronic back pain. A March 2011 VA examiner, however, stated that degenerative disc disease of the lumbar spine was less likely than not related to service. Her conclusion was based on Veteran's reports during the examination of long history of employment as a steel worker, with multiple low back injuries treated under Workers' Compensation. She also noted more recent injuries noted in the record, such as a February 2006 fall injuring the thoracic spine, and a June 2010 x-ray referencing blunt trauma to the lumbar spine. In addition, the Veteran's report of the minimal injuries sustained by his wife in the 1973 accident, along with his normal physical findings at separation, further supported a post-discharge etiology of the current condition. The Board finds the March 2011 VA examiner's opinion to be more probative than the private opinions of Dr. M.C. in assessing the etiology of the Veteran's low back disability. The VA examiner's opinion includes a rationale which cites to specific findings in the record to support the underlying conclusion. Notably, the examiner referenced the Veteran's history as a steel worker, including multiple injuries sustained therein. While these injuries are not corroborated elsewhere in the record, the examiner also referenced private treatment records which document additional injuries to the spine. In contrast, Dr. M.C. did not provide any significant explanation for his opinion that the Veteran's 1973 accident was likely to be the cause of his current back pain. The failure of the physician to provide a basis for his/her opinion affects the weight or credibility of the evidence. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Therefore, the overall weight of the competent medical evidence is against a finding that there is a nexus between the current low back condition and service. The Board has considered the Veteran's own statements in support of his claim. However, he has not demonstrated any specialized knowledge or expertise to indicate he is capable of rendering a competent medical opinion. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of his lumbar spine degenerative disc disease falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In addition, the Board has considered the Veteran's statements that he has experienced continuous low back symptomatology since service. In private treatment records dated August 2010, the Veteran reported a 37 year history of chronic back pain following the hit and run accident. In September 2010, he reported having back pain for "many decades" after a motor vehicle accident. However, the Board notes that, after the May 1973 accident, the Veteran denied a history of any recurrent back pain in a July 1973 medical history report. In addition, his service treatment records document additional complaints not related to the low back, including a hand laceration, a sore throat and general malaise, headaches, right wrist pain, nosebleeds, a rash, and various other symptoms. If the Veteran had experiencing ongoing back problems since the 1973 accident, then common sense leads to the conclusion that it would be documented alongside the other difficulties the Veteran reported experiencing in service. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Although the Veteran recently reported having ongoing back pain since the accident, the Board finds these later statements to be less probative than the service treatment records. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran long after the fact). Even where a veteran has asserted continuity of symptomatology since service, the Court has held that he or she is not necessarily competent to establish a link between the continuous symptomatology and a current underlying condition. See McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999). This principle is particularly relevant in this present case, as the Veteran clearly sustained additional back injuries subsequent to his accident in service. For these reasons, the preponderance of the evidence is against finding that the Veteran has a low back disability etiologically related to active service. B. Acquired Psychiatric Disorder The Veteran originally claimed service connection for PTSD. There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are similar, but nonetheless separate, from those for establishing entitlement to service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Entitlement to service connection for PTSD, in particular, requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. §§ 3.304(f) and 4.125. In this case, an August 2012 VA examination diagnosed PTSD attributed to three in-service stressors identified by the Veteran. Therefore, elements (1) and (3) for service connection for PTSD have been met. With respect to element (2), the stressors reported by the Veteran during the August 2012 VA examination include seeing a plane crash which killed his commander, seeing a helicopter crash, and being exposed to two fires which broke out aboard his ship. Later in August 2012, the RO requested that the Veteran provide additional information regarding these incidents, including the approximate timeframes in which they occurred and the names of any individuals involved. However, the Veteran did not respond to this request for information. In September 2012, the Joint Services Records Research Center (JSRRC) issued a formal finding indicating that the available information regarding these incidents was not sufficient to attempt verification. In addition, the Board notes that in VA treatment records generated 4 days after the August 2012 VA examination, the Veteran was unable to identify any traumatic events when queried about PTSD symptoms. Earlier, during a PTSD screen conducted in April 2007, the Veteran denied having any frightening or horrible experiences that resulted in symptoms such as nightmares, avoidance, or hypervigilance at that time. These inconsistencies call into question the credibility of the Veteran's reported stressors. Cf. Zhang v. U.S. I.N.S., 386 F.3d 66, 77 (2d Cir. 2004) (Inconsistencies as to the date when a stressful event occurred are "not the sort of 'minor and isolated' discrepancies so plainly immaterial to a persecution claim that no reasonable fact finder could use them as a basis for an adverse credibility ruling.") (quoting Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000)) overruled on other grounds by Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc). The regulations governing claims for PTSD were amended effective July 13, 2010. 75 Fed. Reg. 39843 -52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a claimed stressor is related to a Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. §§ 3.304(f)(3). However, this provision is not applicable to this case. The plane crash reported by the Veteran occurred immediately after takeoff, and the helicopter crash purportedly occurred when the aircraft got "hung up" on the side of the ship. There is no indication that any of the claimed stressors, including the shipboard fires, are related to hostile military or terrorist activity. Although PTSD has been diagnosed and attributed to in-service stressors, those stressors have not been verified. The Veteran did not respond to a request for additional information regarding these incidents, and the credibility of his report of these stressors is diminished by his prior and subsequent statements indicating no such trauma. The overall weight of the evidence is against a finding that the Veteran has a verified stressor in service, and therefore service connection for PTSD must be denied. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994) (if the claimed stressor is non-combat related, appellant's lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by credible supporting evidence). In addition to PTSD, the Veteran has been diagnosed with other psychiatric disorders to include major depressive disorder, and the Board has considered whether service connection is warranted for this condition as well. However, service treatment records are negative for any complaints, treatment, or diagnoses relating to depression. A July 1973 medical history report shows the Veteran denied any depression, excessive worry, or nervous trouble. His April 1975 separation examination was also normal. There is no evidence to indicate that depression was incurred in service, and no competent evidence otherwise attributing current depression to service. ORDER Service connection for a low back disability is denied. Service connection for an acquired psychiatric disorder, including PTSD, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs