Citation Nr: 1800240 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-10 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for multi-level disc bulging of the lumbar spine (low back disability). 2. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with depression. 3. Entitlement to a compensable rating for fracture of the alveolar bone (maxilla) and splintering of the buccal plate. 4. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert W. Gillikin, II, Attorney at Law ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active military duty from June 1979 to February 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The issues of entitlement to an initial rating in excess of 30 percent for PTSD with depression, and a compensable rating for fracture of the alveolar bone (maxilla) and splintering of the buccal plate, and to a TDIU, are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all doubt in the Veteran's favor, his low back disability, to include x-ray findings of degenerative changes, has existed continuously since separation from service. CONCLUSION OF LAW The criteria for service connection for low back disability have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist As a preliminary matter, the Board has reviewed the record and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Legal Criteria, Factual Background and Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain disabilities, including arthritis, are presumed to be service connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Service treatment records (STRs) show that in July 1982 the Veteran was seen at an military aid station with complaints of pain in his lower left back when he stepped off on his left foot. He stated that it started July 13, 1982; he had no problems before that period (no history of back problems). The assessment was tight lower back muscles, tight hamstrings, tight facet, worn down heels, and pain of the musculoskeletal. A January 1984 emergency care and treatment report notes that the Veteran was seen for low back pain from a pulled muscle after picking up wood. The diagnosis was sprain/"MS"[musculoskeletal] pain. Also, in January 1984 the Veteran was seen for follow-up treatment for his lower back; a diagnosis of muscle strain was rendered. In June 1984 he was seen at the aid station for back problems for the past 2 days. He reported his back was improved and he was ambulating better. The diagnosis was low back pain-lumbosacral strain. In July 1984 he presented at an in-service aid station with a history of low back pain and complaints of lower back pain with radiation down his left leg for the past 4 days. The assessment was sciatica. His treatment plan included heat, no physical training or lifting greater than 15 pounds and medication. An undated STR reveals the Veteran was seen at the aid station with complaints of low back pain that existed for one year and he had been seen about it 2 months prior. He reported having constant back discomfort while active and at rest; medication treatment provided no relief. The diagnosis was chronic low back pain. Postservice treatment records (VA primary care report) reveal that in June 2007 the Veteran returned to a VA clinic with continued low back pain that was worse. He stated he could not stand up due to pain in the left sacroiliac joint and left buttocks. He denied any bowel/bladder dysfunction. A July 2007 VA primary care report notes the Veteran with continuing back pain. The pain was located at the left side of low back; it was deep in the muscle and increased with leaning forward. The diagnosis was low back pain-consistent with lumbosacral strain but for prolonged duration. A July 2007 MRI shows the lumbar vertebral bodies in alignment without any compression fracture or dislocation. There was minimal degenerative retrolisthesis of L5 on S1 with loss of intervertebral disc height and disc desiccation. The conus was unremarkable ending at L1. At L2 -L3 there was a small central disc protrusion and broad based left paracentral disc bulge without any neural foraminal narrowing or central canal stenosis. At L3-L4, L4-L5 there was no disc bulge, herniation, spinal stenosis or neural foraminal narrowing. At L5-S1 there was broad based central disc protrusion without any neural foraminal narrowing or central canal stenosis. On an August 2011 VA back conditions examination, the Veteran reported his back pain began when he picked up a piece of wood, while in the motor pool, and heard a snap in his back. He went to sick call and was put on bedrest for 3 or 4 weeks. After service he went to a VA Medical Center(VAMC) for "stresses and strains." An MRI [magnetic resonance imaging] of the lumbar spine revealed lumbar disk bulging. On physical examination, there was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. There was no functional loss and/or functional impairment of the thoracolumbar spine. July 2011 x-rays of the lumbosacral spine showed mild degenerative changes of the lumbosacral spine with disc space narrowing at L5-S1. The diagnosis was multi-level disk bulging of the lumbar spine. The examiner opined that the currently diagnosed low back pain condition was not related to the low back pain during military service. The rationale for the opinion was that the Veteran had in-service care for episodic low back strains usually provoked by activity. Assessment of this care and the Veteran's high level of functioning in the military led the examiner to determine there was no lasting, chronic low back condition likely to be present post-military discharge. Review of the record did not reveal needed continuity of care for a low back condition. The most likely cause of this finding is the effect of aging. There is no evidence that findings of the Veteran's current low back condition was a continuation of his inservice event. The examiner concluded that the Veteran's currently diagnosed low back pain condition was not related to the low back pain during military service. In this case, the Veteran has a current diagnosis of multi-level disc bulging of the lumbar spine with x-ray evidence showing degenerative change of the lumbosacral spine. He asserts that he has suffered from low back disability since service. STRs show he was extensively treated for, and diagnosed with, low back problems in service, including for sciatica. His service separation medical examination is unavailable for review. Postservice treatment reports show the Veteran with low back disability consistent with his inservice complaints, treatment and diagnoses. While the August 2011 VA back conditions examination contains a negative nexus opinion and provides a rationale for the negative opinion, the Board finds the documented reports of chronic back problems in service and the Veteran's credible and persuasive statements of continuous back problems since service to be most probative of this matter. After resolving all doubt in the Veteran's favor, service connection is found to be warranted for low back disability. This claim is thus granted in full. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for multi-level disc bulging of the lumbar spine is granted. REMAND Based on a review of the record, the Board finds that additional development is needed prior to adjudication of the matters of entitlement to an initial rating in excess of 30 percent for PTSD with depression, a compensable rating for fracture of the alveolar bone (maxilla) and splintering of the buccal plate, and TDIU. The Veteran essentially asserts that his service-connected PTSD with depression and fracture of the maxilla and splintering of the buccal plate have worsened since the last VA examinations in May 2013 and March 2011, respectively. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. A new examination, however, is appropriate when there is an assertion of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95. In a September 2017 submission, the Veteran's attorney noted that the Veteran's mental health problems have worsened since the May 2013 VA PTSD examination. In addition, the Veteran's attorney asserts that the Veteran has loss more teeth due to his service-connected fractured maxilla since the last VA oral examination in March 2011. The loss of teeth since the March 2011 examination was documented in the May 2013 VA dental examination. In light of the assertions that the Veteran's service-connected disabilities are more severe, and mindful that the examinations are four or more years old, current examinations must be afforded to accurately assess the current level of these disabilities. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer, 10 Vet. App. at 403. Also, any additional relevant VA treatment records should be obtained and associated with the Veteran's record. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, the Veteran contends that he is entitled to TDIU. The Board finds that a TDIU is inextricably intertwined with the above issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure for association with the record all outstanding records of VA treatment the Veteran has received for PTSD and fracture of the maxilla from February 2017 to the present. 2. After the above has been completed to the extent possible, schedule the Veteran for a VA psychiatric examination to address the current nature and severity of his PTSD with depression. The Veteran's record should be reviewed by the examiner. All appropriate tests and studies should be conducted, and the results reported in detail. The report should detail all subjective complaints and objective symptoms. In addition to objective test results, the examiner should fully describe the practical effects caused by the Veteran's PTSD, including the effect of his disability on his occupational and daily functioning. The examiner should include a rationale with all opinions. 3. After the above has been completed to the extent possible, schedule the Veteran for VA oral examination to address the current nature and severity of his fracture of the alveolar bone (maxilla) and splintering of the buccal plate. The Veteran's record should be reviewed by the examiner. All appropriate tests and studies should be conducted, and the results reported in detail. The examiner should identify, and comment on the nature, frequency and severity (as appropriate) of symptoms associated with the service-connected fracture of the alveolar bone (maxilla) and splintering of the buccal plate, including any loss of teeth due to the service-connected disability, found to be present. The examiner should include a rationale with all opinions. 4. After completing the requested actions, the RO should readjudicate the issues in light of all evidence of record, to include the claim of entitlement to a TDIU. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his attorney a supplemental statement of the case and afford a reasonable opportunity for response before returning the case to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs