Citation Nr: 1804945 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-25 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for residuals of a traumatic brain injury (TBI). 3. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD) with depressive aspects, including somatic symptom disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from January 2007 to October 2009. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified before the undersigned Veteran Law Judge during a Travel Board hearing. A transcript of the proceeding is of record. In January 2015, the Board remanded the claims for further development. And in an April 2015 rating decision, on remand, the Appeals Management Center (AMC) granted service connection for PTSD with depressive aspects. In response, the Veteran did not separately appeal either the rating or effective date assigned for this now service-connected disability, so this claim is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he has to separately appeal these "downstream" issues). As also was addressed in the Board's January 2015 remand, this claim has been recharacterized to the broader issue of entitlement to service connection for an acquired psychiatric disorder more generally, which now also includes somatic symptom disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, like the PTSD and associated depression, the Board is associating this additional mental disorder with the Veteran's military service, so it, too, is becoming part and parcel of his service-connected disability. Additionally, however, the Agency of Original Jurisdiction (AOJ) has continued to deny the remaining claims, as reflected in a contemporaneously-issued April 2015 Supplemental Statement of the Case (SSOC), and therefore since has returned these other claims to the Board for further appellate review. There was compliance, certainly the acceptable substantial compliance, with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT 1. The most probative (meaning most competent and credible) evidence of record indicates the Veteran's somatic symptom disorder is etiologically related to his active military service. 2. The preponderance of the evidence, however, is conversely against finding that he has a current back disability or residuals of a TBI because of his service. CONCLUSIONS OF LAW 1. The criteria are met for entitlement to service connection for somatic symptom disorder. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. But the criteria are not met for entitlement to service connection for a back disability or for residuals of a TBI. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, VA's duty to notify was satisfied by a letter sent to the Veteran in November 2009. The letter informed him of the evidence required to substantiate the claim, and of his and VA's respective duties in obtaining this necessary supporting evidence. The letter also advised him of how a "downstream" disability rating and effective date are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the claim was subsequently readjudicated in the September 2011 Statement of the Case (SOC), as well as in additional Supplemental SOCs (SSOCs). See Prickett v. Nicholson, 20 Vet. App. 370 (2006). He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate. Thus, the Board finds that VA's duty to notify has been satisfied. Regarding the duty to assist, the Board notes that the claims file contains the Veteran's service treatment records (STRs), pertinent post-service medical records, buddy statements, as well as his written contentions and hearing testimony. Neither he nor his representative has identified, nor does the record otherwise indicate, any other evidence relevant to his claim that has not been obtained and that is obtainable. Furthermore, he was afforded VA examinations and opinions consequently were provided concerning the merits of this claim. Upon review of the medical evidence, the Board concludes that these examination reports, especially when considered collectively, are adequate for the purpose of rendering a decision in this case. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Legal Criteria for Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain "chronic diseases" may be presumed to have been incurred in service if they manifested to a degree of 10 percent or more (i.e., to a compensable degree) within one year of the Veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by probative evidence to the contrary. Id. When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease that was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection also may be granted on a secondary basis for a condition that is not directly caused by the Veteran's service, but instead secondarily related. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). This includes instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). A layperson is competent to report on the onset and continuity of his current symptomatology. 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. Jandreau v. Nicholson, 492 F.3d 1372 (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, supra. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. III. Acquired Psychiatric Disorder Most recently, the Veteran was afforded another VA compensation examination in March 2015. The VA examiner diagnosed PTSD and somatic symptom disorder with predominant pain symptoms. The examiner explained that the diagnosis of somatic symptom disorder was based on extensive medical evidence that the Veteran's pain complaints and professed incapacity are substantially in excess of any findings to substantiate them. Although addressing these significant discrepancies, the examiner indicated the Veteran's belief in his version of the medical history and subsequent symptoms appear to be sincere, and therefore his beliefs are highly intertwined with his psychiatric conditions. In light of this opinion, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the most probative evidence of record supports concluding that his somatic symptom disorder is traceable to his active military service, like the PTSD and associated depression already conceded to be the result of his service. The March 2015 VA medical opinion on this determinative issue of causation is the only probative opinion of record, and it provides an adequate rationale supporting the conclusion that the Veteran's psychiatric diagnosis stems from his service. There can be no doubt that further inquiry can be undertaken with a view towards developing this claim even more. However, in this regard, the Board recognizes that the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the sole purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, in light of the evidence of record and applicable law, the Board concludes that service connection for somatic symptom disorder is warranted. 38 C.F.R. § 3.102. IV. Residuals of a TBI The Veteran seeks service connection for residuals of a TBI, which he contends he sustained in September 2008 while serving in Iraq. Having carefully considered the Veteran's claim, in light of the evidence of record and the applicable law, the Board concludes that the preponderance of the evidence is against a finding that he has any current residuals of a TBI related to his service and, thus, the appeal must be denied. The Board will begin by addressing direct service connection. As noted above, the first element of direct service connection requires medical evidence of a current disability. Here, the competent medical evidence indicates that neither a chronic nor disabling condition has been objectively demonstrated The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131's requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed. In this case, the Veteran testified that his condition stems from an incident where he sustained a TBI while helping other service members replace an armored door from a downed vehicle. See November 2014 Board Hearing Transcript at 3. He indicated that he was "ground-guiding" the crane operator when the chain broke, which caused the door to fall and hit him in the back of his head. Id. In his most recent VA examination, the examiner indicated that the Veteran reported the door weighed 800 pounds and, when it landed on top of him, the door completely covered him from the head down and only his legs were sticking out. See March 2015 VA examination report. Review of the medical evidence shows that the Veteran sought medical treatment towards the end of November 2008 and reported a history of having sustained a concussion with 12 minutes of loss of consciousness about two months earlier that was associated with problems with his vision. An STR dated in December 2008 shows that, due to the limited medical facilities in Iraq, he was medevacked to Landstuhl, Germany for evaluation by ophthalmology and neurology. Following evaluation, the ophthalmologist indicated that the Veteran had a normal eye examination without any evidence of optic neuropathy, retinal defect, or any other abnormalities. The Veteran was then referred to neurology for examination and an MRI. The neurology report shows that the Veteran reported having lost consciousness for 12 minutes while boxing "at the end of September '08 or a few months ago." He further reported that, upon regaining consciousness, he had blurry vision and a scotoma in the left eye. He indicated he did not seek medical help at the time of injury because he has had "more than a hundred" closed head injuries with loss of consciousness since the age of 10. Diagnostic testing was negative. Shortly after his separation from service, the Veteran was afforded a VA TBI compensation examination in December 2009, where he reported a medical history of sustaining a concussion due to a boxing incident. The examiner indicated that the Veteran's reported medical history was inconsistent with established treatment protocols for TBI and, as a result, deferred providing a medical opinion until the Veteran's service treatment records were available for review. An addendum opinion was obtained in February 2010. The examiner observed that there were some in-service ophthalmology records referencing a TBI, but indicated that there were no specific records regarding a TBI during service. Nonetheless, the examiner rendered a provisional diagnosis of TBI due to this reference. However, the examiner indicated that the Veteran's cognitive and affective symptoms are less likely related to a TBI and more likely related to his mental health conditions. Most recently, the Veteran was afforded another VA compensation examination in March 2015. He reported that he sustained a TBI while serving in Iraq. He stated that he "was helping other service members move a door from the back of a truck using a crane," where the chain holding the door broke and landed on top of him and completely covered him "from the head down." He further stated that he had a loss of consciousness from the time of the injury until he woke up in the hospital in Balad. He stated that he could not remember details of his hospitalization in Iraq because his head was completely bandaged, including his eyes, and he was unable to see. He further reported that his mouth has not moved right since the injury and that his left eye has been smaller since the injury. He indicated that he was completely paralyzed from the waist down and remained in a wheelchair for the next year and a half until he was discharged. Following physical evaluation, and extensive review of the evidence of record, the VA examiner indicated that a TBI, let alone residuals of a TBI, have not been objectively demonstrated. The examiner indicated that the Veteran has had a vastly changing history of events over time and stated that none of the reported events are medically credible or supported by physical examination. Consequently, the examiner opined that it is less likely than not that the Veteran's condition was caused by his service. In support of this determination, the examiner indicated that "it is not the case that there is no back or TBI condition because there are no service treatment records; it is rather the case that there are no service treatment records because there are no conditions." The examiner stated that all of the Veteran's complaints are due to his psychiatric diagnoses of PTSD and somatic symptom disorder with predominant pain symptoms, which was noted as having been rendered jointly by a neurologist and a psychiatrist. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, as the evidence of record shows that the Veteran does not have a current chronic condition due to a TBI, the Board concludes that service connection for residuals of a TBI is not warranted, and no further discussion of the remaining elements is necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection). Accordingly, to the extent that the medical evidence addresses whether the Veteran has residuals of a TBI, the preponderance of the evidence indicates that he does not. The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record. See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau, supra. To the extent that the Veteran has indicated that he currently has a chronic condition, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits. Furthermore, as the question of causation extends beyond an immediately observable cause-and-effect relationship, he is not competent to render a diagnosis or address etiology in the present case. Although lay persons are competent to provide opinions on some medical issues, see, e.g. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue of whether the Veteran currently has residuals of a TBI falls outside the realm of common knowledge of a lay person. Consequently, his statements as to a current diagnosis of chronic residuals of a TBI are not probative. Even assuming arguendo that the Veteran did sustain a TBI during service and has a current disability, the Board still finds that service connection is not warranted because the competent medical evidence, as well as the records contemporaneous to service, are all against a finding of any residuals of a TBI related to his active military service. Moreover, the Board notes that it does not find that the Veteran's lay statements regarding his TBI during service lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the lay statements are found to lack credibility because they are internally inconsistent, and inconsistent with the medical evidence of record. More importantly, there are no competent medical opinions of record that relate the Veteran's claimed residuals of a TBI to his service. In fact, despite rendering a provisional diagnosis of TBI due to a reference in the STRs, a VA examiner stated in his February 2010 addendum opinion that the Veteran's cognitive and affective symptoms are less likely related to a TBI and more likely related to his mental health conditions. Additionally, the Veteran's VA treatment records are consistent in the notion that the etiology of his complaints are of a supra-tenial etiology. See, e.g. November 2014 Polytrauma Neuropsychology Consultation; March 2015 VA examination report (stating that supra-tenial means in the cerebral cortex, which means the medical examiners were implying that the complaints are psychogenic). As the preponderance of the evidence is against a finding that the Veteran has any current residuals of a TBI, the benefit of the doubt rule is not applicable. Therefore, the Board finds that service connection for residuals of a TBI is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). V. Back Disability The Veteran seeks service connection for a back disability, which he contends he sustained in September 2008 while serving in Iraq. Having carefully considered the Veteran's claim, in light of the evidence of record and the applicable law, the Board concludes that the most probative evidence is against the Veteran's claim. The Board will begin by addressing direct service connection. As noted above, the first element of direct service connection requires medical evidence of a current disability. In this case, the Veteran was diagnosed with a low back strain. See December 2009 VA examination. Therefore, the Veteran has satisfied the first element of service connection. As previously mentioned, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease. A service treatment record (STR) dated December 1, 2008 reflects that the Veteran sought treatment for headaches, which he described the pain as radiating down his neck and back. An STR dated December 11, 2008 shows a provisional diagnosis of neck and low back pain, and also documents that an evaluation of the cervical and lumbar spine is needed. An STR dated December 13, 2008 reflects that the Veteran reported 2/10 back pain and was given morphine to help him sleep during a flight. A report of medical history dated in July 2009 documents "low back pain," "lumbar radiculopathy," and "back injury." No further details were provided. Following his separation from service, the Veteran was afforded a VA examination in December 2009. He stated that he injured his back "picking up a truck in Iraq in 2008" and noted that at the time he "felt something pop in his back." He indicated that he never sought treatment for this injury. Regarding his current symptoms, he reported having constant low back pain every day. He reported using a cane. Following physical evaluation, the examiner indicated that the lumbar spine showed a normal curvature. It was nontender on palpation, and there were no deformities or swelling. Normal strength was found in the lower extremities. Also, active range of motion did not produce any weakness, fatigue or incoordination. The examiner diagnosed the Veteran with low back strain. Diagnostic testing was normal. After review of the STRs, the examiner submitted an addendum opinion in February 2010. The examiner opined that the Veteran's claimed back conditions is less likely than not related to service, because there was no evidence of treatment in the STRs. In its January 2015 decision, the Board found the December 2009 VA examiner's medical opinion to be inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran's VA treatment records consistently document the lack of a current back condition. See, e.g., MRI report dated Dec. 29, 2014 (an MRI of the thoracic spine was unremarkable); Back DBQ dated Feb. 12, 2015 (finding that the Veteran did not have a diagnosis of a back condition); Rehabilitation Care Services Clinic dated Feb. 20, 2015 (documenting the Veteran's reported history of injury back from an 800 pound door; MRIs were completely normal; there was no diagnosis of a back condition, but was diagnosed with chronic pain syndrome). Most recently, the Veteran was afforded another VA compensation examination in March 2015. He reported that he sustained a back injury while serving in Iraq. He stated that he "was helping other service members move a door from the back of a truck using a crane," where the chain holding the door broke and landed on top of him and completely covered him "from the head down." He further stated that he had a loss of consciousness from the time of injury until he woke up in the hospital in Balad. He indicated that he was completely paralyzed from the waist down and remained in a wheelchair for the next year and a half until he was discharged. Following physical evaluation, and extensive review of the evidence of record, the examiner indicated that there was no pathology or diagnosis of any thoracolumbar spine condition. Moreover, the examiner stated that there was neither a chronic nor disabling back condition at this time. The examiner stated that all of the Veteran's complaints are due to his psychiatric diagnoses of PTSD and somatic symptom disorder with predominant pain symptoms, which was noted as having been rendered jointly by a neurologist and a psychiatrist. In fact, aside from the December 2009 provisional diagnosis of low back strain, the examiner indicated that the remaining medical evidence shows the absence of any back condition. The Board notes that the March 2015 VA examination is highly probative, because this opinion was based on examination of the Veteran and a thorough review of the claims file. Moreover, the opinion provided the required explanatory rationale for the ultimate conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Further, the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner considered the relevant medical history of the Veteran's claimed back condition, including the lay evidence of record, performed an examination, and provided a rationale to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's claimed back condition is etiologically related to service. Although the Veteran has maintained that his current back condition is related to his active military service, the most probative evidence indicates otherwise. While the medical evidence documents several diagnoses of low back pain, aside from the December 2009 provisional diagnosis of low back strain, the Veteran has not actually been diagnosed with a chronic back condition. The Board notes that symptoms alone, without a diagnosed or identifiable underlying condition, do not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). As the preponderance of the evidence is against finding that the Veteran has a current back disability that is etiologically related to his active military service, the benefit of the doubt rule is not for application. Therefore, the Board finds that service connection for a back disability is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER The claim of entitlement to service connection for somatic symptom disorder is granted. However, the claims of entitlement to service connection for a back disability and for residuals of a TBI are denied. ______________________________________________ Keith W. Allen. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs