Citation Nr: 1746928 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-33 823A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, diagnosed as conversion disorder. 2. Entitlement to service connection for left leg radiculopathy as secondary to the service-connected low back disorder. 3. Entitlement to an initial rating higher than 20 percent for low back strain. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active duty service from May 20, 1980 to May 19, 1983, and from January 21, 1986 to February 19, 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2010 and April 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a video-conference hearing. A transcript of the hearing is of record. At the hearing, the Veteran waived initial RO consideration of the new evidence and other evidence submitted since the most recent supplemental statement of the case (SSOC). 38 C.F.R. § 20.1304 (c) (2016). The Board notes that evaluation of left shoulder rotator cuff tendonitis is not on appeal. The RO listed this issue in the June 2015 SSOC in error. The Board finds that because the Veteran did not perfect a timely appeal regarding the claim for a higher rating for left shoulder rotator cuff tendonitis, nor did he present any argument specific to this claim at the Board hearing, this issue is not in appellate status. The claim for entitlement to an increased rating for low back strain and the claim for entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An acquired psychiatric disorder was not documented during service, nor was psychosis shown within one year of separation from service, and the weight of the competent evidence is against finding a nexus between a post-service diagnosis of any psychiatric disorder, to include conversion disorder, and service or any incident therein. 2. The evidence of record is at least in equipoise as to whether the Veteran currently suffers from left leg radiculopathy secondary to the service-connected low back strain. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for an acquired psychiatric disorder, to include conversion disorder, have not been met. 38 U.S.C.A. §§ 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for establishing service connection for left leg radiculopathy as secondary to the service-connected low back strain, have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis, hypertension, sensorineural hearing loss, organic disease of the nervous system such as tinnitus, or psychoses, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303(b). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. 1. Psychiatric disorder The Veteran asserts that an acquired psychiatric condition manifested in-service. Specifically, he claims that his in-service "nervous breakdown," shows an initial manifestation of his currently diagnosed conversion disorder. In this case, the medical evidence shows that the Veteran has been diagnosed with conversion disorder. Thus, the remaining question before the Board is whether such disability is related to service. The Veteran's service treatment records show that on enlistment examination in December 1979 the Veteran was psychiatrically evaluated as normal and in a Report of Medical History he denied a history of nervous trouble of any sort, depression or excessive worry. In November 1982 the Veteran was seen for reports of having a nervous breakdown. On quadrennial examination in August 1983 the Veteran denied a history of nervous trouble of any sort, depression or excessive worry. A June 1985 entrance examination and Report of Medical History noted a history of psychiatric treatment in 1982 attributed to the Veteran's separation from his spouse. He was psychiatrically evaluated as normal and the Veteran denied a history of nervous trouble of any sort, depression or excessive worry. After service, medical treatment records after 2004 reflect a diagnosis of, and treatment for conversion disorder. Reportedly, the Veteran went to bed on the night of May 24, 2004, and woke up the next day unable to speak grammatically correct sentences or use numbers. At that time the clinician noted no history of psychiatric treatment. Records show that the Veteran was experiencing work-related stress and had quit his employment in May 2004, a few days prior to seeking medical treatment on May 25th. An October 2004 clinical treatment note reflects a diagnosis of severe conversion reaction with a history of possible similar episode 20 years earlier when his first wife left him. Subsequent medical treatment records show ongoing treatment for the Veteran's psychiatric disorder. As noted, the Veteran received in-service psychiatric treatment in 1982 associated with marital problems. The condition appears to have resolved with treatment and subsequent psychiatric clinical evaluations were normal and the remainder of the service treatment records do not reflect complaints, treatment or diagnoses related to an acquired psychiatric disability. In light of the finding that the Veteran no longer had a psychiatric disorder after the November 1982 incident, and normal psychiatric examinations thereafter in 1983 and 1985, the Board finds that the service treatment records do not support a finding of an in-service chronic psychiatric condition, and psychosis was not shown in service or within one year following discharge from service. On the contrary, the Veteran's service treatment records reflect that his psychiatric symptoms resolved with treatment in 1982. Accordingly, competent evidence linking the current disability to service or a service-connected disability is needed to substantiate the claim. In July 2010 the Veteran underwent a VA mental health disorders examination. The examiner noted that the Veteran experienced sudden onset of distortion of speech on May 25, 2004, after quitting his job as manager of Arby's. The examiner also noted that treatment records at that time failed to document evidence of organic pathology after extensive work up, nor a significant psychiatric history prior to 2004. The examiner diagnosed conversion disorder and opined that the condition was not caused by or a result of complaints of nervous breakdown in service. The examiner explained that while the service treatment records made one very short mention of the Veteran having a nervous breakdown in November 1982, there was no psychiatric note after that statement. Moreover, the Veteran's current mental condition occurred in 2004 after he quit his managerial job. The examiner could find no etiological relationship between the currently diagnosed conversion disorder and the single in-service incident, more than 20 years earlier. Significantly, following the 1982 isolated incident, the Veteran functioned very well for many years and did not have speech difficulties or other associated symptoms until 2004. The Board finds the opinion of the VA examiner to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran's acquired psychiatric disorder is related to service, to include an incident of nervous breakdown noted in November 1982. The examiner considered the complete record and the Veteran's contentions, and provided a detailed explanation as to why the evidence supports his findings. The Board finds this opinion is highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no medical opinion of record linking a psychiatric disorder with service. The Board has considered the Veteran's lay statements indicating that his in-service nervous breakdown was an initial manifestation of his currently diagnosed conversion disorder. The Veteran is competent to testify as to his observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Unlike disabilities that may be observable as to both their incurrence and their cause, the cause of a psychiatric disability is not readily apparent to lay observation, and the Court has held that psychiatric diagnoses are generally the province of medical professionals. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Moreover, even if credible and competent, the Veteran's general lay assertions are outweighed by the specific and reasoned conclusions of the health care professional who objectively found that his disorder is not a result of service. Nieves-Rodriguez, 22 Vet. App. at 304. Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding that the Veteran's psychiatric disorder, to include conversion disorder, arose in service or is etiologically related to service or any incidents therein. Moreover, psychosis was not shown within one year following discharge from service, and the provisions regarding continuity are not for application. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2016). In sum, as the persuasive evidence is against a finding that a psychiatric disorder is causally related to service, the Board finds that the preponderance of the evidence is against the claim that conversion disorder was incurred in or in any way related to service. As such the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1366 (Fed. Cir. 2001). 2. Left leg radiculopathy The Veteran claims that he currently suffers from left leg radiculopathy as secondary to his service-connected lumbar spine disability. In this respect, the Board notes that the Veteran is service-connected for low back strain. On VA examination in November 2011, the Veteran complained of numbness and tingling in left leg. The examiner noted decreased light touch and pin prick sensation on the left lower extremity not following a particular dermatomal distribution, and a tingling sensation on medial side of knee upon sensory testing. There were no sensory deficits from L1-L5, or S1. There was no lumbosacral motor weakness. The left lower extremity reflexes were knee jerk 2+ and ankle jerk 1+. The lower extremities showed no signs of pathologic reflexes. The examination revealed normal cutaneous reflexes. Following an examination of the Veteran the examiner diagnosed left leg sensory neuropathy, not otherwise specified. A July 2014 electromyography (EMG) nerve conduction study suggested mild diffuse polyneuropathy, additional follow-up was recommended. September 2014 EMG study revealed abnormal electromyography of the left lower extremity and the left lumbar paraspinal musculature. There was electrodiagnostic evidence of moderately severe L4 radiculopathy, with active degenerative changes. The clinician noted probable coexisting milder L5 radiculopathy. It was further noted that nerve conduction studies in July 2014 demonstrated a mild diffuse distal sensory polyneuropathy. Subsequent treatment records document treatment for, and a diagnosis of lumbosacral radiculopathy. July 2015 treatment notes recorded an impression of chronic low back pain with sciatica from herniated disc. Neurological examination showed left lower extremity radicular L4/5 distribution with chronic below the knee paresthesia. Based on the evidence of record, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left lower extremity symptoms are attributable to radiculopathy secondary to his service-connected chronic low back strain. 38 C.F.R. § 3.310. Thus, the Board finds that service connection is warranted for left leg radiculopathy. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for conversion disorder is denied. Service connection for left lower extremity radiculopathy is granted. REMAND The Veteran's last VA examination to evaluate the severity of the service-connected low back strain was in November 2011. During the March 2017 Board hearing, the Veteran alleged that his lumbar spine disability had worsened in severity and was productive of symptomatology that warranted a higher rating. Specifically, he stated that his range of motion was more limited compared to when he was last examined in 2011, and his activities were further restricted. Accordingly, a VA examination is warranted. The claim for entitlement to a TDIU is inextricably intertwined with the claim for increased rating for low back strain. Thus, adjudication of the TDIU claim is deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, relevant ongoing medical records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant treatment records for treatment received at VA Medical Centers, not already in the claims file. 2. After completing the foregoing development, the appellant should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected lumbar spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file must be made available to and be reviewed by the examiner. The examiner is requested to address the following: a) Provide the range of motion of the lumbar spine in degrees during active motion, passive motion, weight-bearing, and nonweight-bearing. State whether there is any form of ankylosis. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). b) Describe all neurological manifestations and symptomatology and offer an opinion as to whether the Veteran has any separately ratable neurological disability (in addition to orthopedic disability) as a manifestation of the service-connected lumbar disc disease. The examiner should discuss the severity of any radiculopathy or neuropathy found to be present in the lower extremities and indicate whether the degree of impairment is best characterized as mild, moderate, moderately severe, or severe. c) Provide findings responsive to the criteria for rating intervertebral disc syndrome (IDS) and specifically, comment on the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician), if there are any, in the last 12-month period. d) The examiner should address the impact the Veteran's lumbar spine disability has on his ability to obtain or maintain gainful employment. 3. Then, readjudicate the Veteran's claims on appeal, to include the claim for entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. 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 2014). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs