Citation Nr: 1751477	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  07-24 223A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD).

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran had active service with the United States Marine Corps from February 1973 to September 1973. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 1998 and March 2007 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In June 2011, the Veteran testified at a video hearing before a Decision Review Officer (DRO); a transcript has been associated with the record on appeal.

In December 2011, the Board remanded the appeal to attempt to provide the Veteran with a Board hearing before a Veterans Law Judge (VLJ) at the RO; he first requested in his August 2007 VA Form 9.  The Veteran was not able to attend in-person hearings before VLJs that were scheduled for December 2011 and November 2015; because he was incarcerated.  The Veteran has also declined VA's offer of a video hearing before a VLJ.  See, e.g., Veteran's letter dated in November 2011; Post-Remand Brief dated in September 2016.  VA has made reasonable efforts to provide the Veteran with a hearing.  The Veteran has made no arguments with regard to additional efforts to afford him a hearing.  The Board may therefore, proceed with adjudication of the appeal.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In January 2017 the Board, among other things, remanded the above issues for additional development. 

As to the application to reopen the claim of service connection for a low back disability, given the evidence added to the record since the last final decision the Board is reopening the claim.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  

The claim of service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The preponderance of the evidence shows that the Veteran has not been diagnosed with an acquired psychiatric disorder to include PTSD at any time during the pendency of the appeal.


CONCLUSIONS OF LAW

An acquired psychiatric disorder to include PTSD was not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts he is entitled to service connection for an acquired psychiatric disorder to include PTSD because it is due to his military service.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

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).  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 psychoses, 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 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017).  

In order to establish service connection for the claimed disability, 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).  

Regulations also provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  

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).

The Board is 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.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).

A condition precedent for establishing service connection is the presence of a current disability because absence of proof of a present disability there is no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

As to all acquired psychiatric disorders other than PTSD, the service treatment records and post-service records are negative for a diagnosis.  In fact, the Veteran's November 2011 mental health screening from his place of incarceration was negative for a psychiatric disorder.  Likewise, when examined by VA in July 2017 for the express purpose of ascertaining if he had any acquired psychiatric disorder it was opined that he did not.  These medical opinions are not contradicted by any other medical evidence of record.  

As to PTSD, the Board notes that in a treatment record from Chillicothe Correctional Institute the Veteran reported having PTSD.  However, the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion.  LeShore v. Brown, 8 Vet. App. 406 (1995).  The Board also notes that a psychiatric report prepared in connection with the Veteran's criminal adjudication received by VA in November 2015 reported that that he had a diagnosis of PTSD.  However, while the Court has held that diagnosis of PTSD are presumed to be in accordance with governing medical principles, the Board nonetheless finds that the diagnosis of PTSD found in the November 2015 report is not credible because it is supported by any rational and the cited PTSD stressors (i.e., serving during the Vietnam War error and injuring his low back while on active duty), that do not meet VA's criteria for non-combat stressors because the Veteran did not deploy to the Republic of Vietnam and service treatment records do not document an in-service low back injury.  38 C.F.R. § 3.304; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("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....  As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . .").

On the other hand, and as noted above, the November 2011 his mental health screening was negative for a psychiatric disorder and at the July 2017 VA examination, which was held for the express purpose of ascertaining if the Veteran had PTSD it was specifically opined that he did not meet the criteria for a diagnosis of PTSD.  The Board finds the July 2017 VA examiner's opinion the most probative evidence of record because it is supported by an examination of the Veteran and a review of the record on appeal.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases).

Therefore, the Board finds that the most probative evidence shows that the Veteran did not have a diagnosis of an acquired psychiatric disorder including PTSD at any time during the pendency of his appeal.  See Owens.  Accordingly, because a condition precedent for establishing service connection for a claimed disability is the diagnosis of the disability at any time during the pendency of the appeal and this Veteran does not have such a diagnosis, the Board must conclude that entitlement to service connection for an acquired psychiatric disorder to include PTSD must be denied.  See 38 U.S.C.A. § 1110, 38 C.F.R. §§ 3.303, 3.304; McClain.


ORDER

Service connection for an acquired psychiatric disorder to include PTSD is denied.

REMAND

As to the claim of service connection for a low back disability, given the Veteran's enlistment examination, which was negative for a diagnosed low back disability, his competent and consistent in-service and post-service competent complaints of low back pain since a documented in-service motor vehicle accident, his in-service treatment for back disability and his current diagnoses of back disability, the Board finds that a remand is required to obtain a needed medical opinion as to the origins or etiology of his current back disability.  

The Board initially denied service connection in November 1978 on the basis that the Veteran's back disability was a constitutional and developmental abnormality not subject to service connection.  Since that time, courts have noted that when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry.  38 U.S.C.A. § 1111 (West 2014); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that a disability was both preexisting and not aggravated by service.  Wagner, 370 F.3d at 1096.  Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant.  In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease.  Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). 

Moreover, service connection may be granted for congenital diseases, but not congenital defects.  Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993).  When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry.  38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The presumption of soundness applies if a veteran's congenital disease is not noted at entry.  See Quirin, 22 Vet. App. at 396-97, Monroe, 4 Vet. App. at 515.  

While the appeal is in remand status, the AOJ should obtain and associate with the claims file any outstanding treatment records from the Chillicothe Correction Facility as well as invite the Veteran to file with VA probative lay statements.  See 38 U.S.C.A. § 5103A(b) (West 2014).

Accordingly, this issue is REMANDED to the AOJ for the following actions:

1.  After obtaining authorizations from the Veteran, associate with the claims file his outstanding treatment records from the Chillicothe Correction Facility.

2.  Notify the Veteran and his representative that they can submit lay statements from the claimant and from other individuals who have first-hand knowledge of in-service low back problems and any continued problems since that time.  Provide them a reasonable time to submit this evidence. 

3.  Contact the Veteran's correctional facility to determine whether the Veteran can be afforded a VA examination.  If an examiner at the correctional facility is unwilling or unable to perform the examination, the AOJ should arrange for the Veteran's file to be reviewed by an appropriate VA examiner.  After that review, the examiner must respond to the following: 

a. The examiner should state the likelihood that any back disability found to be present existed prior to service.  

b. If the examiner concludes that back disability found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service.  

c. If the examiner diagnoses the Veteran as having back disability that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service.  

In offering each of these opinions, the examiner should specifically acknowledge and comment on the Veteran's [competent report of ongoing symptoms of back since service.  

In providing the requested opinions, the examiner should comment on the service treatment records that document a motor vehicle accident, the findings of the Physical Evaluation prior to the Veteran's discharge from active duty and the Veteran's competent lay reports of having low back pain in and since an in-service accident. 

The examination report must include a complete rationale for all opinions expressed.  

4.  Then readjudicate the claim.  If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC).  The Veteran should be given an appropriate opportunity for response before returning the appeal 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 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).






____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs