Citation Nr: 1752297 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 17-02 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD). 2. Entitlement to an initial evaluation in excess of 10 prior to October 21, 2016 for service connected thoracolumbar strain (low back) and thoracic paraspinous myofascial pain syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and S.S. ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran had active duty service from November 2007 to August 2011. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office, (RO). The Veteran was provided with a hearing before the undersigned Veterans Law Judge on May 2017. A copy of the transcript has been associated with the claims file and reviewed accordingly. The Board notes that the Veteran testified at his May 2017 Board hearing that he was satisfied with his current evaluation of 20 percent for his service connected thoracolumbar strain (low back) and thoracic paraspinous myofascial pain syndrome from October 21, 2016. Rather, he clarified that the issue for which he was appealing was to have the 20 percent evaluation extend back to the initial effective date. As such the Board finds that the scope of the Veteran's appeal in this regard is limited to the time period prior to October 21, 2016. The caption on the title page has been amended accordingly to reflect this finding. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran has had multiple, and at times contradicting, psychiatric diagnoses, but when examined for VA purposes in January 2017, he was diagnosed to have an anxiety disorder. 2. The various medical opinions addressing the etiology of the Veteran's psychiatric impairment do not contemplate all theories of entitlement to service connection. 3. The Veteran has exhibited anxiety symptoms since service. 4. The evidence is in relative equipoise as to whether the Veteran's claimed acquired psychiatric disorder, diagnosed in January 2017 as anxiety disorder had its onset in service. . 5. The Veteran's service-connected thoracolumbar strain (low back) and thoracic paraspinous myofascial pain syndrome has only shown evidence of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; and painful motion throughout the period of appeals prior to October 21, 2016. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, acquired psychiatric disorder, diagnosed as anxiety disorder was incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. The criteria for a disability rating in excess of 10 percent prior to October 21, 2016 for service-connected thoracolumbar strain (low back) and thoracic paraspinous myofascial pain syndrome are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.102 , 3.159, 3.321, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran, nor his representative has raised any additional 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 a duty to assist argument). Legal Criteria Service Connection Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303 (d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for certain chronic diseases, including psychoses, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). A decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), held that the notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.1 (2016). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). The Veteran's low back is currently evaluated as 10 percent disabling in accordance with the General Rating Formula for the Spine under the disability criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under those criteria, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2016). Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2016). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2016); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Acquired Psychiatric Disorder The Veteran contends that his psychiatric disability is the result of military service. In this regard, the Veteran has testified that his psychiatric symptoms began during military service and continued until present. The Veteran has testified that he feared for his life when he served in Iraq. The Veteran has provided lay testimony from several family members who attested that the Veteran underwent significant personality and emotional changes after he returned from service in Iraq. A review of the Veteran's service treatment records reveals that in January 2007, prior to service, the Veteran smoked pot and had been in counseling for a personal decision. No psychiatric conditions were noted. In May 2009 and June 2009 it was noted that the Veteran drank alcohol 2 to 4 times a month, with 5 or 6 drinks per occasion. The Veteran drank more than 6 drinks less than monthly. In October 2009 it was noted that the Veteran drank monthly or less, with 3 to 4 drinks per occasion. The Veteran never drank six or more drinks on one occasion. A mental status evaluation in May 2011 by a licensed clinical social worker showed that there is no psychiatric disease or defect which warrants disposition through medical channels, although the Veteran reported that he had been stressed, experienced anxiety, and had episodes of depression. The Veteran was screened for PTSD and did not meet diagnostic criteria for this disorder. The Veteran had not been treated by Family Advocacy or Army Substance Abuse Services and the evaluation did not indicate a need for referral to Family Advocacy; however referral to Army Substance Abuse Program upon return to the United States was mandatory as a result of reported drug use while in Iraq. A review of the Veteran's post-service outpatient treatment records reveals that he has received ongoing mental health treatment since January 2012. The Veteran has been assessed with various diagnoses, including PTSD, other specified trauma and stress related disorder, depression, anxiety, bipolar disorder, and amphetamine-induced psychotic disorder. The Veteran was provided with a VA examination in July 2014. The Veteran described stressors related to being mobbed by Iraqis and incoming rockets, which the examiner indicated was adequate to support the diagnosis of PTSD and related to fear of hostile military or terrorist activity. The Veteran reported that he saw a psychiatrist while in Iraq around 2011 due to having nightmares, not sleeping well, and because he was bothered by thoughts. He believed that he was depressed. Following the examination and a review of his records, the examiner diagnosed amphetamine induced psychotic disorder; stimulant (methamphetamine) and cannabis use disorder in early remission; other specified trauma and stressor related disorder, and unspecified depression disorder. In the examination report, it was set out that the Veteran had a Criterion A stressor exposure while serving in Iraq, which was related to his fear of hostile military or terrorist activity. However, he did not have PTSD, as the remaining criteria were not met. While he did endorse some PTSD symptoms related to a variety of military experiences, diagnostic clarity was described as uncertain given the history in service treatment records as well as childhood trauma history and substance induced psychosis. Furthermore, the Veteran noted significant disbelief regarding his discharge from the military. Many of his depressive as well as psychotic symptoms were found to be related to this event. Additionally, symptoms of depression were also found to be likely substance-induced, potentially related to pre-military trauma, and complicated by situational problems such as estrangement from his children, relationship problems, financial strain, and homelessness. The Veteran's continuous substance use (methamphetamine and cannabis) with the only period of abstinence from both substances being the last 3 months, further impacted diagnostic certainty. Given the absence of psychotic symptoms prior to stimulant use, however, it was the examiner's opinion that the psychotic symptoms were exclusively substance induced. The examiner concluded that it would be mere speculation to opine that the Veteran's diagnosis of other specified trauma and stressor related disorder was caused by deployment traumas. The Veteran reported several pre-military traumas, various military traumas/experiences, and the service treatment records indicated previous reported symptoms related to situational stressors. Diagnostic uncertainty due to the Veteran's psychosis, long-standing substance use, and depressive symptoms related to the undesired military discharge would make it mere speculation to opine if the pre-military difficulties were exacerbated by military trauma events. However, the Veteran did report a history of depression dating back to 2003. Thus it is as likely as not that the Veteran's depression began in the military and was exacerbated by his deployment experiences, situational stressors, and undesired discharge. Substance use and subsequent difficulties have also contributed to an exacerbation of the depression. In a letter dated May 2015, Dr. Wenzel stated that it is his clinical judgment that the Veteran suffers from symptoms consistent with PTSD. No further rationale was provided to include diagnostic testing and criteria utilized in arriving at the diagnosis. The Veteran was provided with an additional VA examination in September 2015. The Veteran reported that he experienced numerous instances of enemy fire during his deployments to Iraq and that he witnessed an Iraqi hospital get blown up by insurgents. The examiner stated that these stressors were adequate to support the diagnosis of PTSD and were related to the Veteran's fear of hostile military or terrorist activity. However, the examiner stated that these symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria. The Veteran did not have enough Criterion D symptoms. The examiner diagnosed cannabis use disorder and methamphetamine use disorder, in remission. The examiner stated that making a determination about whether the Veteran met the criteria for any mental health condition, including PTSD/trauma disorder, anxiety or depression could not be made without resorting to mere speculation for several reasons. First, the Veteran's personality testing profile was invalid due to significant symptom over-endorsement, and thus the credibility of his self-report was significantly diminished. Second, the Veteran had a history of chronic severe substance use with associated psychotic symptoms. While the Veteran no longer appeared floridly delusional, he continued to report significant suspiciousness/paranoia. There is no way to know what effects the Veteran's chronic severe substance use has had on his psychiatric symptoms. In addition, the Veteran had significant psychosocial stressors, including no contact with his children and unemployment, which were likely the negative consequences of his substance abuse. These stressors were likely to be a significant contributing factor to his mood and overall functioning. Finally, with regard to PTSD specifically, the Veteran did have a childhood trauma history, which factors into the conceptualization of his mental health symptoms. In a letter dated December 2015, Jaclyn Barney, PMHNP, FNP, at Essential Health stated that the Veteran had a diagnosis of PTSD. No further rationale was provided to include diagnostic testing and criteria utilized in arriving at the diagnosis. The Veteran was provided with an additional VA examination in January 2017. The Veteran reported stressors related to incoming fire and rockets all the time. The Veteran reported that he was in charge of manning the tracing system for incoming rounds. The closest one was 50-100 meters from him. Following the examination and a review of his records, the examiner stated that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM- 5 criteria. The examiner diagnosed other unspecified anxiety disorder and cannabis use disorder. The examiner thought it less likely as not the anxiety was related to or caused by the reported military stressors and stated that the Veteran does not meet full criteria for PTSD, depression, or another mental health disorder. The Veteran at times used the term "depressed" in a lay-sense, but denied clinically defined depression symptoms on direct questioning. The Veteran denied most PTSD symptoms. The few that he did endorse did not meet clinical threshold for severity given that the frequency or severity is very low. In general, the memories and dreams that the Veteran had do not cause clinically significant distress nor do they impair his functioning. The Veteran's anxiety is best accounted for by substance abuse, relationship conflict, separation from children, and other non-military factors. The Veteran's frequent thoughts about military service are more about his unwanted discharge, the death of a friend (though he was not present at the time), and less so about your actual reported trauma experience. The Veteran described frequent thoughts about the experiences and in general did not have difficulty discussing those events (he even indicated that he enjoyed talking about them). Similarly, the Veteran reported frequent dreams about experiences, but when he awakened, he felt happy about them and wanted to discuss them. Occasionally the Veteran did not wake up feeling good about them, but reported that either way he was able to go back to sleep. In general, the Veteran reported having good sleep. Thus, overall the Veteran did not describe that his current functioning was in a manner consistent with distress secondary to military experiences. The examiner noted that the Veteran was diagnosed with substance abuse disorders in previous compensation and pension exams, but that he was currently not using meth or drinking alcohol. The Veteran continued to use marijuana. The Board finds, upon resolving all reasonable doubt in the Veteran's favor, service connection for acquired psychiatric disorder, diagnosed as anxiety disorder is warranted. With respect to the substance abuse disorders diagnosed, because they are of willful misconduct origin, service connection for them is not warranted. 38 U.S.C. §§ 105, 1101; 38 C.F.R. § 3.1. As to the PTSD diagnoses, the evidence reflecting that diagnosis does not contain adequate explanation for the basis of that conclusion, and when that diagnosis was more specifically explored on VA examinations, it was shown not be present. As such, a basis upon which to establish service connection for that condition is not shown. Similarly, other specified trauma and stressor related disorder and depression have not been consistently seen, and are notably absent when last examined. Thus, the record does not satisfactorily show the presence of those disabilities sufficient to establish an award of compensation benefits. With respect to an anxiety disorder, that disability was diagnosed when the Veteran was last examined for VA purposes, and while the examiner concluded this was not related to the Veteran's reported military stressors, there was no discussion of the fact anxiety complaints were noted during service. The Veteran in this case is presumed sound at service entrance. In-service records show anxiety complaints. These are also seen in the post service records. With a formal diagnosis of an anxiety disorder entered in the 2017 examination, it may be reasonably concluded the disorder was incurred in service. Low Back The Veteran contends that his service-connected low back disability was worse that reflected by his current evaluation of 10 percent prior to October 21, 2016. In this regard the Veteran has complained of severe pain and limitation of motion as a result of this disability. A review of the Veteran's service treatment records reveals that he was treated in-service for complaints of lower back pain and assessed with mechanical lower back pain. A review of the Veteran's post-service outpatient treatment records reveals that the Veteran has been continually followed for lower back pain since leaving military service. The Veteran was provided with a VA examination in June 2014. The Veteran reported constant upper mid back pain. His pain was noted to be increased by carrying, lifting, and sitting up straight. Upon examination, forward flexion was to 90 degrees, extension was to 10 degrees, and bilateral lateral flexion and rotation was to 20 degrees with pain. The Veteran was noted to have tenderness or pain to palpation of the thoracolumbar paraspinous muscles and thoracic and lumbar spine. The Veteran did not have muscle spasms or guarding. He also was not found to have intervertebral disc syndrome. In a December 2014 treatment note, lumbar active range of motion showed flexion and side bend was within functional limits and extension was 25 percent restricted. The Veteran was provided with an additional VA examination in September 2015. The Veteran reported low back pain. Upon examination, forward flexion was to 80 degrees, extension was to 0 degrees, and bilateral lateral flexion and rotation were all to 30 degrees with no pain noted on exam. There was no objective evidence of localized tenderness or pain on palpation. The Veteran was not found to have guarding or muscle spasm. The Veteran was not found to have intervertebral disc syndrome. Based on the above, the Board finds that a rating in excess of 10 percent for the Veteran's low back disability is not warranted prior to prior to October 21, 2016. The Veteran's low back was, at its worst, only to 80 degrees of flexion and 200 degrees combined range of motion. Furthermore, while there were showings of pain and tenderness, there were no showings of any muscle spasms, guarding, or intervertebral disc syndrome. In order to warrant a higher evaluation, the Veteran's low back disability would have needed to show evidence of flexion 60 degrees or less; combined range of motion of 120 degrees or less; muscle spasms, guarding, or intervertebral disc syndrome; or ankylosis. As the Veteran's low back disability had not even come close to these ranges or severity during the period prior to October 21, 2016, a consideration of any higher evaluations is not for application. The Board has considered whether additional staged ratings are warranted, but finds that they are not. The evidence, including the Veteran's statements, does not show that there are distinct periods of time where evaluations higher than a 10 percent evaluation prior to October 21, 2016 are warranted. The evidence of record does not warrant ratings in excess of those assigned for the thoracolumbar strain (low back) and thoracic paraspinous myofascial pain syndrome at any time prior to October 21, 2016. 38 U.S.C.A. § 5110 (West 2014). ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as an anxiety disorder, is granted. Entitlement to an evaluation in excess of 10 prior to October 21, 2016 for service connected thoracolumbar strain (low back) and thoracic paraspinous myofascial pain syndrome is denied. ______________________________________________ M. E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs