Citation Nr: 1752696	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  12-27 209	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), for substitution or accrued benefits purposes.

2.  Entitlement to service connection for a low back disability, for substitution or accrued benefits purposes.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

N.M. Floore, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1959 to October 1979.  The Veteran died in November 2013 during the pendency of the appeal; his surviving spouse has been properly substituted as the appellant in the instant case.  See 38 U.S.C. § 5121A (2012).  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

In January 2013, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ).  A transcript of this hearing is of record.  The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on appeal.  38 U.S.C. § 7101(c) (2012); 38 C.F.R. § 20.707 (2017).  In July 2017, the Board sent the appellant a letter which explained that the VLJ who presided over the Veteran's hearing was no longer available to participate in the appeal and offered the appellant a hearing before a different VLJ; otherwise, the case would be reassigned.  To date, the appellant has not replied, and therefore the Board assumes that she does not require an additional hearing and proceeds with the matter on appeal.

In January 2014, the Board dismissed the issues on appeal as the Veteran had passed away, but substitution by the appellant, as noted, has been granted.

This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.


FINDINGS OF FACT

1.  Resolving all reasonable doubt in the appellant's favor, the Veteran had PTSD that was related to his combat experiences in service.

2.  A low back disability, characterized as status post lumbar laminectomy, was not manifest during service, and is not otherwise attributable to service.


CONCLUSIONS OF LAW

1.  PTSD was incurred in service for accrued benefits or substitution purposes.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017).

2.  The criteria for service connection for a low back disability characterized as status post lumbar laminectomy have not been met for accrued benefits or substitution purposes.  38 U.S.C. §§ 1110, 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Because the benefit is being granted in full, any development or notification actions under the Veterans Claims Assistance Act of 2000 (VCAA) do not avail the appellant in pursuit of service connection for PTSD.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126.  As such, a discussion of whether the VA has met its statutory and regulatory duties to notify and assist the claimant with development of the Veteran's PTSD claim is unnecessary.

The VCAA enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017).

A review of the record shows that the Veteran passed away in November 2013.  Prior to his death, he had pending claims on appeal.  As noted in the Introduction, the RO granted the appellant's request to be substituted as the claimant for the purposes of processing this appeal to completion.

VA's duty to notify under 38 C.F.R. § 3.159 (b) (1) has been met by letters from the AOJ issued to the Veteran prior to his death in April 2011, August 2011, and February 2012.  In July 2014, following her application for accrued benefits after the Veteran's death, the appellant was issued additional correspondence which included discussion of the relationship of accrued benefits to substitution, the manner of substitution request and claim processing, and benefits to which substitution applies.

Since providing this notice, the appellant has not made any pleading or allegation of insufficient VCAA notice or shown that any such error is unduly prejudicial, meaning outcome determinative of her claim.  As the pleading party, she has this burden of proof, not VA.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  There is no such pleading or allegation in this instance.

At the January 2013 Board hearing, the Veteran testified that he injured his back while in service after a helicopter jump and was seen for treatment during the period of 1959 to 1968.  The Board notes that the Veteran's complete service treatment records are unavailable.  In February 2012, the RO issued a Formal Finding on the Unavailability of Service Treatment Records from the period of October 12, 1959 to October 5, 1965 and informed the Veteran of the same and requested that he submit any relevant information in his possession.  To date, no such evidence has been submitted. 

Because the Veteran's complete service treatment records are not available, and as such records are federal records, the Board is required to provide a heightened explanation of its findings and a careful consideration of the benefit of the doubt rule.  38 U.S.C. § 5107 (b).  However, there is no presumption, either in favor of the claimant or against VA, arising from missing records.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005).  Moreover, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a veteran.  Russo v. Brown, 9 Vet. App. 46 (1996).

VA also fulfilled its duty to assist the appellant by obtaining all relevant evidence in support of the claim, which is obtainable, and therefore appellate review may proceed without prejudicing her.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran, while still alive, submitted records and written statements in support of his claim.  A review of the claims file shows that the AOJ has obtained pertinent VA and private treatment records.  Neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.

In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim.  See 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017).  A medical examination is necessary when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence, which indicates that the disability or symptoms may be associated with the claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make a decision.  See 38 U.S.C. § 5103A (d).

The Veteran was not afforded a VA examination pertaining to the back.  As discussed below, there is no evidence other than the Veteran's testimony that a current back disability was incurred in or aggravated by service.  Under these circumstances, the VCAA's duty to assist doctrine does not require that the veteran be afforded medical examination.  See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  In this regard, there is no reasonable possibility that a VA examination would have aided in substantiating the claim.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Therefore, the Board finds that VA has complied with the duty-to-assist requirements.  38 U.S.C. § 5103A (2012).


II.  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. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b)).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303 (b).

Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and certain chronic diseases such as arthritis or psychoses become manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  The disease need not be diagnosed within a presumptive period; it must be shown by acceptable medical or lay evidence, that there were characteristics manifestations of the disease to the required degree during that time.  Id.

A.  Acquired Psychiatric Disorder

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record.

Additionally, when the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt.  See 38 U.S.C. §5107 (b); 38 C.F.R. §§ 3.102, 4.3.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  See id.  The Board notes that where, as here, the Veteran's service treatment records are confirmed to have been unavailable for the period from October 1959 to October 1965; the Board has a heightened duty to consider the "benefit of the doubt" doctrine.  See generally Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v, Derwinski, 1 Vet. App. 365, 367 (1991).

Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between a veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  See 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997).  38 C.F.R. § 4.125 adopts the diagnostic criteria set forth in The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM- V) for medical evaluation of mental disorders, but at the time of the Veteran's claim, 38 C.F.R. § 4.125 was still utilizing the DSM-IV criteria.  38 C.F.R. § 4.125 (a) (2014).  As such the DSM-IV criteria are applicable to this claim, and if PTSD was diagnosed by a medical professional, VA must assume that the diagnosis meets the DSM-IV criteria relating to adequacy of the symptomatology and sufficiency of the stressor.  See Cohen, 10 Vet. App. at 153.

Moreover, if military citation or other supportive evidence establishes that the Veteran engaged in combat with the enemy during service and the claimed stressor is related to that combat, the Veteran's lay testimony alone may substantiate the occurrence of the in-service stressor so long as: (1) the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service; and (2) there is no clear and convincing evidence to the contrary.  38 C.F.R. 3.304 (f)(2); see 38 U.S.C. § 1154 (b); Gaines v. West, 11 Vet. App. 353 (1998).  To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C. § 1154 (b) requires that the Veteran have actually participated in combat with the enemy.  See VAOPGCPREC 12-99.

Credible supporting evidence need not corroborate every detail of a claimed stressor.  Suozzi v. Brown, 10 Vet. App. 307, 311 (1997) (holding that corroboration does not require "that there be corroboration of every detail including the appellant's personal participation in the identifying process."); see also Pentecost v. Principi, 16 Vet. App. 124, 128-29 (2002) (finding that while the veteran's unit records did not specifically show that he was present during the alleged rocket attacks, "the fact that he was stationed with a unit that was present while such attacks occurred would strongly suggest that he was, in fact, exposed to the attacks.").  As such, the record need only imply the Veteran's participation.  See id.

Moreover, the evidentiary burden of establishing a stressor is reduced when it is related to a fear of hostile military or terrorist activity.  In this situation, if a stressor is related to the Veteran's fear of history military or terrorist activity, a VA psychiatrist or psychologist (or a psychiatrist or psychologist with whom VA has contracted) confirms that the stressor is adequate to support a diagnosis of PTSD, and the Veteran's symptoms are related to the stressor, in the absence of clear and convincing evidence to the contrary, his lay testimony alone may establish the occurrence of the claimed stressor.  38 C.F.R. § 3.304 (f)(3).

"Fear of hostile military activity" is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  Id.  Examples of such events include mortar fires and small arms fires.  Id.  However, because, as discussed below, the record reflects that the Veteran engaged in combat with the enemy during his active service, the combat presumption based on fear of hostile military activity need not be addressed.

Here, although some of the Veteran's STRs were unavailable, a review of the Veteran's DD 214, a form which describes the duration and nature of his service, indicated that he served in Vietnam as an infantryman and he was awarded the Combat Infantryman Badge.

The Veteran was afforded a VA psychiatric examination in April 2011.  Following mental status examination, the  examiner confirmed a diagnosis of alcohol dependence, in full remission (not secondary to military service).  The examiner provided a Global Assessment of Function score of 75 which indicated no more than slight impairment in social and occupational functioning.  The examiner provided that the Veteran did not present with a valid criterion A stressor for purposes of a PTSD assessment.  The examiner noted that the Veteran was present and witness to a life threatening injury of fellow soldiers and had documentation of receipt of the Combat Infantry Badge (CIB).  The examiner noted that during the clinical interview, the Veteran did not report symptoms associated with PTSD, such as re-experiencing the trauma, numbness, avoidance, flashbacks, or experiences of disassociation.  At the time of examination, the Veteran reported mild sleep disturbance and some ruminative thinking; however, these symptoms did not appear to be impacting his daily functioning.  The Veteran's performance on objective measures of psychological functioning was not consistent with his presentation in clinical interview and did not indicate a diagnosis of PTSD.  The Veteran's reported history of difficulties in social and occupational functioning appeared to be related to his extensive history of alcohol dependence.  At the time, his presentation did not appear to meet criteria for an Axis I disorder, with the exception of alcohol dependence in full remission.  On the basis of the objective measures and clinical interview, the examiner opined that the Veteran did not currently meet the criteria for PTSD.  The examiner noted the Veteran remained employable at the time and could adequately tolerate the demands, stress, time constraints, and interpersonal functioning inherent in any job setting.  The Veteran did have a history of financial mismanagement, including filing for bankruptcy approximately 4 years prior.  The Veteran was competent to manage his funds.

The record also reveals the existence of a February 2013 Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ) completed by a private medical doctor, Dr. J.M., which contains an opinion as to the Veteran's psychiatric condition.  Dr. J.M. is one of the Veteran's private treating physicians, and unlike the April 2011 VA examiner, he concluded that the Veteran had PTSD based on the DSM-IV criteria, and provided a positive etiology opinion.

In the February 2013 DBQ, Dr. J.M. provided a diagnosis of PTSD and major depression.  The doctor noted the Veteran had multiple medical problems to include coronary artery disease, chronic heart failure (CHF), chronic obstructive pulmonary disease (COPD), past renal failure, hypertension (HTN), borderline diabetes, renal artery stenosis, and hyperlipidemia.  The doctor provided a GAF score of 55 which indicated moderate to severe symptoms.  The doctor indicated that the symptoms of PTSD and major depression can be similar and the Veteran's symptoms are predominantly PTSD.  The doctor noted that the Veteran was not diagnosed with a traumatic brain injury (TBI).  The doctor provided that the Veteran's PTSD and major depression resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The doctor indicated that he reviewed the Veteran's outpatient therapy records, recorded a history from the Veteran and indicated relevant instances of the Veteran's history in the report, including the Veteran's history of alcoholism (in remission), claimed in-service combat stressor, and occupational and familial history.  He indicated that the Veteran met criterion A through F for a diagnosis of PTSD, and identified the stressor as the Veteran's military experiences.

First, while the Board recognizes that the April 2011 VA examination did not diagnose the Veteran with PTSD, the February 2013 DBQ and opinion did, and did so using the required DSM-IV criteria.  As the April 2011 VA examination did consider the Veteran's combat stressors and lay statements, and the February 2013 DBQ did also, both examinations applied the appropriate DSM-IV criteria, and both are consistent with the nature of the Veteran's lay statements and service, the Board finds these medical opinions are equally probative and credits the diagnosis of PTSD and etiology opinion provided by DR. J.M.  The Board finds that the reports are essentially in relative equipoise.

Second, as noted if military citation or other supportive evidence establishes that the Veteran engaged in combat with the enemy during service and the claimed stressor is related to that combat, the Veteran's lay testimony alone may substantiate the occurrence of the in-service stressor so long as: (1) the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service; and (2) there is no clear and convincing evidence to the contrary.  In this case the Veteran is in receipt of a CIB and the Veteran's testimony and lay statements establish the occurrence of in-service stressors because: (1) those statements are related to combat; (2) there is no clear and convincing evidence to the contrary; and (3) the claimed stressors are consistent with the circumstances, conditions, and hardships of the Veteran's service.  38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(2).  As such, the Veteran is entitled to the service connection on that basis.  Id.

Accordingly, affording the Veteran the benefit-of-the doubt, the Board finds that service connection is in order for PTSD as: (1) the record contains a current PTSD diagnosis; (2) there is evidence of a medical nexus between the Veteran's PTSD and an in-service stressor; and (3) the occurrence of that stressor is supported by credible evidence that the underlying in-service stressor actually occurred.

B.  Status Post Lumbar Laminectomy

The appellant contends that service connection should be established for a low back disability characterized as status post lumbar laminectomy.

Service treatment records (STRs) do not show complaint, treatment or diagnosis of a back condition.  As noted above, the Veteran's STRs from the period of October 1959 to October 1965 are unavailable.  However, the Veteran's retirement examination dated June 22, 1979 does not indicate any spine or other musculoskeletal abnormalities.

Private treatment records from the Richland Memorial Hospital indicated that the Veteran had a laminectomy for a ruptured disk in August 1988, more than nine years after his discharge from service.

The Veteran submitted lay statements indicating that he injured his back jumping out of planes in 1963 and 1966.  He also contended that he injured his back when he returned to Ft. Hood, Texas in an M113, but did not report it.  The Veteran also testified at a Board hearing in January 2013.  The Veteran stated that he injured his back in service and was told to wrap it, was given an injection and placed on light duty for one week.  However, as indicated above, the STRs for the period in which the Veteran stated he injured his back are not available.

The Board finds that while the Veteran's available STRs do not document the presence of a back injury in service, the Veteran is competent to report that he sustained a back injury in service jumping out of planes.  The Board also finds his statement credible as it is consistent with the nature and circumstances of his service.  Pursuant to 38 U.S.C. § 1154(a), the VA Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case.  

As noted, more favorable consideration is afforded combat veterans under 38 U.S.C. § 1154(b).  A finding of combat status under 38 U.S.C. § 1154(b) is important because it overcomes missing service treatment records and creates a presumption of service connection, thereby shifting the burden of proof of non-service-connection to the Government.  This statute sets forth a three-step analysis. First, it must be determined whether there is satisfactory, lay or other evidence of service incurrence or aggravation of such injury or disease.  Second, it must be determined whether the evidence is consistent with the circumstances, conditions, or hardships of such service.  If these two inquiries are met, the Secretary shall accept the veteran's evidence as sufficient proof of service connection, even if no official record of such incurrence exists.  If both of these inquiries are satisfied, a factual presumption arises that the alleged injury or disease is service connected.  In the third and final step of the analysis, the Board must determine whether the Government has met its burden of rebutting the presumption of service connection by "clear and convincing evidence to the contrary."  Collette v. Brown, 82 F.3d 389, 393 (1996).

To the extent that the Veteran claimed some of the back injuries occurred in combat, the Veteran's assertions are sufficient to establish that he sustained a back injury in service likely jumping from aircraft.  Moreover, the evidence for this fact is consistent with the circumstances, conditions, or hardships of such service.  However, the Board finds that there is clear and convincing evidence that the Veteran's post- service back disability is not of service origin.  The available STRs dated after the purported in-service injuries contain no reports, complaints, or findings of a back disability including the Veteran's separation examination.  The evidence of record does not indicate manifestations of arthritis within one year of separation of service.  Further, the Veteran's status post lumbar laminectomy occurred more than eight years after his retirement from military service.  The Veteran was not afforded a VA examination because the record contained no probative evidence which indicated or suggested that his back condition or symptoms may have been associated with his military service.  Though the Veteran testified that he had intermittent back pain in service and since leaving service, his retirement examination in June 1979 did not indicate any spine or musculoskeletal abnormalities.  While the Veteran more recently reported intermittent back pain after service, notably, the Veteran's 1988 private medical records documenting treatment and back surgery show that he presented with a long history of lower back pain but only since the early 1980's. He gave no history of any back injuries in service or chronic back pain since then.  The Board finds this record to be significant coupled with the negative 1979 separation examination that there was no chronic back disorder at that time as it was made for treatment purposes and contemporaneous to the Veteran's back surgery.  The related private 1988 contemporaneous surgical/operative records show a preoperative and postoperative diagnosis of left central herniated disc, L5-S1 level and include the report that the Veteran originally hurt his back three years earlier (1985) with intermittent back pain and more recent severe back pain with radiation to the left hip and leg.  Based on the foregoing, the Board does not find the Veteran's assertion of ongoing back pain from the 1960s to be credible and supported by the record.

Even if the Board accepts as credible the Veteran's assertions as to in-service back injury associated with jumping out of aircraft, there must still be medical evidence etiologically linking the Veteran's alleged back injury in service to a post-service back disability.  See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997).  In short, 38 U.S.C. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996).  Here, however, there is no persuasive evidence of a nexus between current back disability and service, to include alleged injury therein.  

For the reasons set forth above, the Board finds that the evidence of record does not show that a low back disability to include status post lumbar laminectomy was incurred in service.  The Board finds that the preponderance of the evidence is against a finding that a back disability was incurred in service.  The benefit-of-the-doubt rule does not apply, and entitlement to service connection for a low back disability, characterized as status post lumbar laminectomy is denied.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55.



ORDER

Service connection for PTSD is granted for accrued benefits or substitution purposes, subject to the laws and regulations governing the payment of monetary benefits.

Service connection for a low back disability to include status post lumbar laminectomy for accrued benefits or substitution purposes, is denied.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs