Citation Nr: 1756050	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  10-04 899	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a low back condition.

2.  Entitlement to service connection for hypertension as secondary to posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for a gastrointestinal condition, including diverticulitis and colitis, to include as secondary to PTSD.


REPRESENTATION

Veteran represented by:  Eric J. Barcavage, Agent


WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

A. VanValkenburg, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1955 to March 1957 with service in the Reserves.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the Board at a July 2015 videohearing.  A transcript of the hearing is of record.  

In October 2015, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further development.  The Board finds there has been substantial compliance with its remand directives as to the claim adjudicated below.  See Stegall v. West, 11 Vet. App. 268 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of service connection for a gastrointestinal condition and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.



FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran has a low back condition that onset in-service, within a year of service, or is otherwise related to service.  


CONCLUSION OF LAW

The criteria for service connection for a low back condition have not been met.  38 U.S.C. § 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's duty to notify and assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

The Board observes that the Veteran's service treatment records are unavailable due to the 1973 fire at the National Personnel Records Center.  In the following analysis, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see also May 2009 formal finding.

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 a duty to assist argument).  

Service connection 

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury or disease incurred in or aggravated during active military service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

In order to establish service connection on a direct basis, the record must contain: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Certain chronic diseases, to include arthritis, although not shown in service, may be presumed to have incurred in or aggravated by service if they manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

Low back condition

The Veteran asserts service connection for a low back condition, diagnosed as degenerative arthritis, osteopenia, lordosis, retrolisthesis, facet hypertrophy, and kyphosis in the July 2017 VA examination.

The Veteran reports low back pain onset in-service and has continued since.  His primary contention is that he fell while carrying an artillery shell weighing nearly 100 pounds.  At this time, he pulled a muscle "or something," was treated with pain medication and told to shake it off.  See e.g., July 2015 Board hearing transcript (located in Virtual VA), pg. 3 of 21 and September 2008 buddy statement.  He also reports a fall from 1956.  He jumped off a truck and had several months of low back pain thereafter.  See June 2008 correspondence.  

The Veteran's DD-214 reflects service in a field artillery unit as an automotive repairman.  As such, the Board finds that the Veteran's reports of in-service injuries are relatively consistent with the circumstances of his service.  The existence of an in-service injury has been established.

Although STRs are unavailable, the Veteran does not contend that he was medically diagnosed with any chronic low back condition in-service.  

The first documented post-service evidence of any low back pain is from a February 2004 VA record.  Although an October 2003 VA record notes a history of osteoarthritis, the location of such was not indicated.  Thereafter, a March 2007 imaging study documented degenerative disc disease, severe spinal stenosis and moderate bilateral foraminal narrowing.  In May 2008, the Veteran reported a three year history of low back pain.  See CAPRI records dated July 19, 2016.  Here, the lack of any documented medical evidence for over four decades post-service is a factor that tends to weigh against the claim.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The Board also finds it significant that in 2008, the Veteran reported that he only had an approximate three year history of back pain.

In support of his claim, the Veteran submitted multiple buddy statements including those from his wife and sister who affirm the Veteran's contentions of experiencing low back pain since service.  He also provided contact information of several others who had knowledge of his long standing history of back problems.  See correspondence dated September 2015 and lay statement dated September 2008.  However, the Board affords these statements less probative value as they are contradicted by the lack of documented complaints in the record until the early 2000s, and the Veteran's own 2008 statement that he only began experiencing back pain a few years earlier - not all the way back to the time of his separation from service.  

A negative nexus opinion was provided by the July 2017 VA contract examiner.  Despite summarizing the Veteran's primary contentions of an in-service onset of low back pain, his fall while carrying artillery with associated treatment, the examiner found that there was no plausible or chronic data to link the back condition to service.  The first documentation of low back complaints was in VA records from 2004 with complaints again noted in 2008 and opined that the initial diagnosis appeared plausible only in the early 2000-ish time period.  The Board affords this opinion great probative value.

The Veteran has submitted no competent nexus evidence contrary to the VA opinion.  The Veteran has been allowed ample opportunity to furnish medical evidence in support of his claim, but he has not done so.  38 U.S.C.A. § 5107(a) (claimant bears responsibility to support a claim for VA benefits).

The only evidence in support of the claim is the Veteran and his families' belief that his claimed low back condition is related to service.  Regardless, they are not competent to provide testimony regarding the etiology of his low back condition.  See Jandreau v. Nicholson, 492 F.3d 1372, n. 4 (Fed. Cir. 2007).  

In light of the above, the Board does not find any competent evidence which establishes that his low back condition onset in-service, within a year of service or is otherwise etiologically related to service.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for a low back condition is denied.




REMAND

Hypertension

The Veteran seeks service connection for his diagnosed hypertension as secondary to his service-connected PTSD.  

The Veteran essentially asserts that symptoms of PTSD, including symptoms of anxiety and stress, resulted in hypertension.  Additionally, the Veteran and his family members believe his former alcohol abuse was a way to treat symptoms of PTSD.  

In July 27, 2017, a negative nexus opinion between the Veteran's hypertension and PTSD with alcohol abuse was provided by a VA contract examiner.  

However, a VA opinion addressing the other part of the Veteran's contention, whether the stress and other associated symptomology related to his PTSD has aggravated his hypertension, has not been addressed.  Accordingly, a remand for such opinion is necessary.

Gastrointestinal Disorder

The Veteran was afforded two VA contract examinations in June 2016 (intestinal surgery and intestinal conditions), with associated nexus opinions provided in July 2017.  See VA medical opinions dated June 21, 2017 (direct) and September 6, 2017 (secondary).  The direct nexus opinion mischaracterized the Veteran's contentions by stating that the Veteran reported only one instance of food poisoning in-service.  See October 2015 Board hearing, see pg. 14 of 21 (3-4 instances of food poisoning).  Further, the direct and secondary opinions contain conflicting findings.  The direct nexus opinion concluded that the Veteran's diverticular disease was age related and the secondary nexus opinion found that the condition was, in part, bacterial.  Accordingly, clarifying opinions should be obtained.

Accordingly, the case is REMANDED for the following actions:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Provide the claims file to an examiner with sufficient expertise to obtain etiological medical opinion addendums.  If the examiner determines that an actual physical examination(s) is necessary, one should be scheduled.  

Based on a review of the claims file, including the medical and lay evidence of record, the examiner should offer an opinion in response to the following: 

(a) Opine whether it is at least as likely as not (50% or greater) that the gastrointestinal conditions, including diverticulitis and colitis, were caused or otherwise etiologically related to service, including the Veteran's assertions of 3-4 instances of food poisoning and the onset and continuance of symptoms since service.

(b) Opine whether it is at least as likely as not (50% or greater) that the gastrointestinal conditions are aggravated (beyond the natural progression) by his PTSD, to include anxiety and stress manifested by PTSD.  

(c) Opine whether it is at least as likely as not (50% or greater) that hypertension was aggravated (beyond the natural progression) by his PTSD, to include anxiety and stress manifested by PTSD.  

If aggravation is found, if possible, a baseline level should be provided before any aggravation occurred.

The opinions must be supported by a clear rationale, discussion of the facts, and medical principles involved.  

2.  Then, after taking any additional development deemed necessary, readjudicate the issues on appeal.  If any of the benefits sought remain denied, issue a Supplemental Statement of the Case.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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. §§ 5109B, 7112 (2012).





______________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs