Citation Nr: 1757584 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 15-27 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for fibrocystic breast disease. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for pregnancy problems. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to March 1980 and from February 1991 to March 1991. She had several years of Army National Guard/Reserve service between 1981 and 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. While the Veteran filed for service connection for PTSD, she has been treated for various mental health disorders throughout the period on appeal and the Board finds that it is appropriate to broaden her claim to encompass any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board notes that the Veteran revoked her attorney representation in May 2015. While she subsequently requested that VA disregard her revocation, she never submitted a new authorization form. Regardless, attorney representation was withdrawn by motion with appropriate notice to the Veteran in October 2017. Also, although she initially requested a hearing before the Board, she withdrew that request in February 2017. Additionally, the Board notes that the Veteran filed a notice of disagreement in May 2017 after the RO denied her claim for service connection for rheumatoid arthritis in February 2017. In her notice of disagreement, however, she indicated "NA" for the decision letter date, crossed out the section for the specific issue of disagreement, and did not specify her point of disagreement in the remarks section. VA mailed a letter indicating that her notice of disagreement was incomplete; as of the date of this decision, the Veteran has not clarified whether she disagrees with the February 2017 rating decision. Accordingly, the Board finds that there is no reason to remand this issue for a Statement of the Case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of service connection for fibrocystic breast disease is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's low back disorder, characterized by low back pain, stems from a post-service event during which the Veteran fell from a second story balcony. 2. The Veteran does not have a current diagnosis related to pregnancy problems and the service treatment records do not show any pregnancy problems in service. 3. The evidence does not show an independently verifiable in-service stressor, and there is no credible evidence linking the Veteran's psychiatric disorders to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for service connection for pregnancy problems have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2015). 3. The criteria for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Board finds that VA's duties to notify and assist have been met and all due process considerations have been satisfied. Except as discussed herein, the Veteran has not raised issues with the duties to notify or 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 (Fed. Cir. 2016) (applying Scott to the duty to assist). In April, September and October 2017, the Veteran submitted additional evidence, primarily her VA treatment records. However, her substantive appeal was filed after February 2013, so waiver is presumed. The pertinent regulations were provided to the Veteran in the Statement of the Case and will not be repeated here. Service Connection for a Back Disorder The Veteran contends that she has a back disorder related to heavy lifting in service. Medical records show that she underwent back surgery in June 2000 and is currently being treated for low back pain status post back surgery. The Board finds that service connection is not warranted for her chronic low back pain disorder status post-surgery. In making this determination, the Board relied heavily on the Veteran's available service treatment records, post-service medical records, and Social Security Administration (SSA) records. The records from her first period of service do not show treatment for any back-related complaints and her back was normal during the Chapter 8 separation examination, conducted in February 1980. Additionally, she did not report frequent back pain on her separation report of medical history. Although the records for her reserve service and second period of active duty service are unavailable, the Veteran contends she injured her back in Germany, where she was stationed during her first period of active duty service; thus, the complete records for that period are associated with the claims file. While the Veteran contends that her back pain stems from service, the plethora of post-service medical and lay evidence indicates otherwise. Private medical records show that she presented to the emergency room with complaints of back pain after she jumped or fell from a second floor balcony during a home intrusion. She was diagnosed with a burst fracture of the L2, paresthesias, and radicular type pain, for which she underwent surgery in June 2000. These records note that she had no relevant past medical history, including no chronic illnesses or regular medications. Subsequent records show that she repeatedly related her back pain to this incident, rather than any in-service event. For example, on a May 2003 SSA disability claim questionnaire, she noted that she used to carry very large parts while working at a manufacturing company, which were "bad on her back due to surgery" and she worked until it became "unbearable." In a July 2003 medical evaluation, she reported that she had a long career with the military and her private manufacturing job until she fractured her back in 2000. Similarly, during a July 2003 psychiatric evaluation, she only reported back problems beginning in June 2000, after her accident, rather than during service. During an August 2003 physical evaluation, she reported that her back problems began in June 2000 when she fractured her spine and underwent surgery. After surgery, she was able to return to her fulltime position until approximately October 2002, when she was diagnosed with a thoracic strain. VA medical records also show that the Veteran only related her back pain to the June 2000 accident, rather than any in-service events. She established care with VA in approximately July 2003, and the initial evaluation shows that the Veteran's chronic back pain began after "she was pushed out a second story apartment during an assault." Importantly, private medical records from 1997 to 2000 do not show complaints of or treatment for back pain until the accident in June 2000. The Board thus finds that the preponderance of the evidence shows that her current back disorder is not related to service and service connection is denied. Even accepting her statement that she injured her back in service, there was a total absence of complaints until a post-service injury and she repeatedly told medical providers her back condition was a result of that injury. Prior to filing her claim for VA compensation, she never reported a military back injury or any continuity of symptoms after service. Rather, she consistently dated onset of symptoms to the 2000 injury. To the extent the Veteran contends her chronic back pain is related to service, the Board finds that her statements are not credible because they are contradicted by contemporaneous medical records and her lay statements made while seeking treatment and SSA disability. The Board finds that these records are more probative than her current statements made while seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board can consider bias in lay evidence, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran in weighting credibility). Because the post-service medical records and lay statements show the current back disorder is related to the post-service back injury, with absolutely no credible suggestion it is related to service, an examination was not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection for Pregnancy Problems The Veteran contends that she is entitled to service connection for pregnancy problems related to her pregnancy in service. She does not specify what kind of "problems" she encountered, but merely states that she "suffered severe complications." Additionally, she contends that her baby died shortly after birth due to inadequate care after she went into labor, which took place four months after separation from service. The Veteran provided a death certificate for her son, which shows that he died one day after his birth, at Baptist Medical Hospital in Montgomery, Alabama, due to cardiac arrest, anoxic encephalopathy, and meconium aspiration. The Board finds that service connection is not warranted for several reasons. First, the Veteran does not specify the current disability caused by her reported in-service pregnancy problems, and post-service medical and SSA records do not show that she has any current disability related to her pregnancy in service. Accordingly, there is no current disability upon which to predicate a claim of service connection. Second, the service treatment records, which appear to be complete for her first period of service, do not show that she experienced any pregnancy-related problems. While she was diagnosed with an umbilical hernia at enlistment and in January 1979, there were no subsequent treatment records documenting an umbilical hernia during her pregnancy. In fact, she was only treated for headaches during her pregnancy in service. Notably, there were no medical problems noted on her Chapter 8 separation examination and she reported that she was in "good health" and only taking vitamins on her report of medical history. To the extent that she is claiming service connection for complications experienced during labor or her child's death as a result of allegedly negligent medical care, these issues are not current disabilities that can be service-connected for VA disability compensation. The events occurred outside of active duty service, and this is not the appropriate venue for such claims. The Board thus finds that the preponderance of the evidence is against the claim for service connection and the claim is denied. Because there is no evidence of a current disability, an examination was not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection for an Acquired Psychiatric Disorder The Veteran contends she is entitled to service connection for a psychiatric disorder, to include PTSD, because of various events in service. Throughout several submissions to VA, she has contended that she has a mental health disorder because she lost her child in service, saw someone get struck by lightning and killed during guard duty, and served in combat during Desert Storm. The medical record shows treatment for various mental disorders throughout the period on appeal, including an adjustment disorder, depression, anxiety, and PTSD. The Veteran underwent a psychological evaluation in July 2003 and reported experiencing psychiatric difficulties related to the 2000 break-in, which resulted in her back injury. She also stated she served in Desert Storm, but she never sought psychiatric treatment. The examiner opined that the Veteran's reported symptoms of panic and nightmares were "contrived" and noted various inconsistencies in her statements throughout the evaluation. While she reported experiencing auditory hallucinations, the examiner determined her statements were not credible and he diagnosed her with malingering and alcohol dependence. The Veteran established care at VA in July 2003, and reported experiencing "'nervousness' all her life, even before military service." She further stated that she slept poorly, partly due to back pain, and felt hopeless due to her unemployed state and financial status. She was diagnosed with chronic anxiety and depression, and referred to the mental health clinic for a consultation but she missed her appointment. In 2004, at a VA primary care visit, the Veteran complained of anxiety-like symptoms and was again referred to the mental health clinic. She underwent a VA psychiatric consultation in May 2004 and reported that her anxiety onset approximately one year before when she was stuck in an elevator and worsened after being involved in a motor vehicle accident two weeks prior to the visit. She also complained of hearing voices and feeling depressed due to her back disability and unemployment. While she reported being in the military, she did not relate any symptoms to in-service events. She was diagnosed with generalized anxiety disorder and psychosis not otherwise specified. VA treatment records do not show further psychiatric treatment until October 2012, when she underwent a psychosocial assessment after being hospitalized for anemia. During the assessment, she reported that she served in combat in Desert Storm. Her mental status evaluation was normal and she was diagnosed with depression and anxiety at a psychiatric follow-up visit later that month. The Veteran did not undergo further mental health treatment until approximately November 2014, when she was referred for a mental health consult based on complaints of stress and grief. She reported that her symptoms stemmed from the stress of living at home with her mother and her father's death. In December 2014, when she was evaluated for services for homeless veterans, she again reported being depressed about living at home and her father's death. While she discussed her history of serving in the military, she specifically noted that she did not go into combat and did not discuss military service as a source of her psychiatric symptoms. She did note, however, that she witnessed a fellow service member die after being struck by lightning. She was diagnosed with major depression, recurrent, and her chronic back pain and social stressors were indicated in Axis III and Axis IV respectively. She also reported that she was hospitalized in 2012 after attempting suicide. The Board notes that the Veteran denied suicidal ideation and suicide attempts during previous and subsequent treatment visits and her hospital records show that she was hospitalized for anemia in 2012 and provided a mental health consultation during that time. In August 2016, she reported being depressed due to her chronic back pain and experiencing agoraphobia. She was diagnosed with a panic disorder and a mood disorder due to her general medical condition. In December 2016, these diagnoses were maintained. During a January 2017 psychiatric treatment visit, the Veteran discussed how her mental health symptoms, including nightmares, sleep impairment, and intrusive thoughts, were caused by various events in-service. She reported that she was deployed on active duty during Desert Storm, she saw a guard killed by lightning, and her baby died due to negligent care when her water broke. She also reported that she was involved in a motor vehicle accident while in the Reserves, which triggered her symptoms and forced her to re-experience her prior traumatic experiences. The psychiatrist diagnosed her with PTSD and noted that the motor vehicle accident in service "exacerbated her symptoms and triggered previous memories of the incidents, near death, and the death of her baby boy." In consideration of the evidence, the Board finds that service connection is not warranted for PTSD. Her military personnel records, which are available, do not show that the Veteran participated in combat and, thus, any assertions of in-service stressors are not sufficient to establish their occurrence. Rather, the in-service stressors must be established by official service records or other credible supporting evidence. See 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002). As discussed below in more detail, her contentions that she served in combat are not credible, and her assertions of in-service stressors are not supported by other credible evidence; accordingly, service connection for PTSD is not warranted. The Board further finds that service connection is not warranted for any another psychiatric disorder. The Veteran's available service records from her first period of active duty do not document any psychiatric treatment or issues, her separation psychiatric evaluation was normal, and she reported that she was in good health on her separation report of medical history. The Board acknowledges that her treatment records from the Reserves and her second period of active duty of service are unavailable. However, she has never alleged that she received any mental health treatment during that time. The only evidence that links the Veteran's mental health disorders to service are her contentions, which lack credibility because they are inconsistent throughout the record. She has both related her psychological symptoms to nonservice issues, such as her back injury, unemployment, living situation, and father's death, and related them to service-related events, such as combat in active duty service, a motor vehicle accident in service, her baby's death in service, her near-death experience in service after birth, and witnessing a fellow service member killed by lightning. She has also contended that she served in combat in Desert Storm and that she never saw combat during service. These inconsistencies are pervasive and undermine the credibility of her statements. The Board further finds that her statements lack credibility because they are contradicted by other evidence in the claims file. Notably, the Veteran has contended on several occasions that she served in combat in Desert Storm. Her military personnel records from 1981 to 2003, however, do not show that she had any foreign active duty service or that she served in combat. Her DD 214 for her second period of active duty service shows that she served from February 1991 to March 1991, with no foreign service, and her personnel records indicate she was at Fort Stewart, Georgia during this period of service. Therefore, her allegations that she was deployed during Desert Storm and had combat service and patently false, and any PTSD or mental health diagnoses that relied on that inaccurate factual history have no evidentiary weight. She also contended that she was involved in a motor vehicle accident in service that caused her to re-experience prior traumatic experiences and worsened her mental health state. VA medical records show, however, that the Veteran was involved in a motor vehicle accident in May 2004; her personnel records show that she was discharged from the Army Reserves in April 2003. There is no documentation of another motor vehicle accident in the claims file. She further argued that her baby died in service. While the Board is sympathetic to her unimaginable loss, the records show that her baby died in July 1980, approximately four months after she was discharged from service. While it is certainly believable that this event has continued to affect her mental health status, it did not happen during service, so it is not something that can support a claim for service connection. Therefore, to the extent her VA mental health records link her psychiatric condition to the loss of her child, it did not happen while she was on active duty. As for the soldier on guard duty that she states she saw die from a lightning strike, the RO sent her a letter in October 2012, requesting details on her alleged stressors. She did not respond. She has not provided a date when this event occurred. Without any details, no request can be made to the Joint Services Research Records Center or JSRRC to conduct meaningful research. This stressor event, then, is not verified. Finally, she contended in December 2014 that she was hospitalized for a suicide attempt in 2012. Medical records show, however, that she was hospitalized for anemia in 2012 and received a mental health consultation during that time. She also repeatedly denied attempting suicide before and after the December 2014 mental health visit. In light of the extensive contradictions and inconsistencies in the Veteran's statements throughout the record, the Board finds that her contentions lack credibility and afforded them no probative value. To the extent that she has mental health diagnoses, including a PTSD diagnosis, based on in-service events, the Board finds that these diagnoses are not competent evidence that these events occurred. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (holding that the Board is not required to grant service connection for PTSD where a physician or other health professional diagnosed PTSD based on the Veteran's asserted in-service stressors). In sum, the service records, lay statements, and post-service medical records do not support her claims that she has a mental disorder related to service and service connection is denied. Because her statements regarding the in-service events that caused her mental disorders are not credible, and there is otherwise no credible evidence indicating the events occurred, the duty provide a medical examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). ORDER Service connection for a back disorder is denied. Service connection for pregnancy problems is denied. Service connection for an acquired psychiatric disorder, to include PTSD, is denied. REMAND The Veteran contends that she is entitled to service connection for fibrocystic breast disease. There is evidence of this disease in service and during the period on appeal. The RO denied the issue because it is not a disease but a physical finding. The Board finds that a medical opinion addressing this issue is necessary prior to making a decision on the merits. Accordingly, the case is REMANDED for the following action: (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. Forward the Veteran's claims file to an appropriate VA medical provider to assist in determining whether service connection is warranted for fibrocystic breast disease. An in-person examination is not necessary unless determined otherwise by the examiner. Following review of the claims file, the examiner should respond to the following questions: a. Is fibrocystic breast disease an acquired disability/disease, or is it simply a finding on diagnostic tests not associated with any disease process? b. If the examiner determines it is a disease, is the current fibrocystic breast disease related to service? The examiner should provide a rationale for his/her opinions, including citation to pertinent medical literature and/or evidence in the claims file. 2. The RO should then re-adjudicate the claim. If the claim remains denied, the RO should issue a Supplemental Statement of the Case and afford the Veteran and her representative, if any, the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs