Citation Nr: 1806125 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-15 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a lumbar spine disability, claimed as a low back disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1966 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February and August 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) above. In October 2015, the Board remanded the claims on appeal for additional evidentiary development, all of which has been completed. Accordingly, the appeal has been returned to the Board for consideration. However, for reasons explained below, the issue of entitlement to an increased rating for service-connected PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The most competent, credible, and probative evidence weighs against a finding that lumbar spine arthritis was manifested during service or within a year of service discharge, or that the current lumbar spine disability was otherwise incurred during or as a result of military service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for a low back disability, which has been diagnosed as degenerative arthritis, herniated disc, and degenerative disc disease affecting the lumbar spine. See March 2014 VA Back examination report. The Veteran attributes his current lumbar spine disability to various injuries that occurred during service, including one particular incident when he jumped from the top of an "Amtrak" with his pack on his back and removed a heavy rifle from the top of the train, both of which hurt his back. See statements from the Veteran dated June and August 2011 and July 2012. The Veteran has submitted a buddy statement from J.M. who served with him during the time of the reported incident and corroborates the report of injury. See October 2011 lay statement from J.M. While the service treatment records (STRs) do not contain any complaints or treatment for a back injury or disability, the Veteran's report of the in-service injury is sufficient to establish service incurrence of a back injury, as the evidence shows he was engaged in combat during active service. See 38 U.S.C. § 1154(b); Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). However, the combat presumption does not alleviate the requirement that the evidence show a current disability attributable to the past in-service disorder. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). Therefore, the remaining question is whether the Veteran's current lumbar spine disability is related to his in-service back injury. After review of the evidence, the Board finds the preponderance of the evidence weighs against such a finding. At the outset, the Board notes that arthritis is considered a chronic disease for VA purposes. Therefore, service connection based on the presumption in favor of chronic diseases and continuity of symptomatology is applicable in this case. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). However, the evidence does not show nor does the Veteran allege that he was diagnosed with or manifested arthritis either in service or within the first post-service year. Therefore, service connection is not warranted on a presumptive basis or based upon continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Turning to the question of direct service connection, the evidentiary record contains two medical opinions which state that it is less likely as not that the Veteran's current lumbar spine disability was incurred in or caused by an in-service injury, event, or illness. See March 2014 VA Back examination report; March 2016 VA examination report and opinion. Both VA examiners noted the Veteran's report of the in-service back injury, as well as his report of chronic back pain since service. The March 2016 VA examiner specifically noted the in-service injury is presumed to have occurred. Nevertheless, both examiners found it probative that there is no evidence of back problems until 1991 - 22 years after service - when he was diagnosed with a herniated disc and had surgery. The examiners stated that the Veteran's herniated disc is consistent with and most likely related to his post-service jobs which involved heavy manual labor, such as working as a construction worker and frequently lifting patients out of bed when he worked in and owned an adult foster home. The March 2014 VA examiner also found probative that, following 1991, the treatment records are silent for back complaints or treatment for 15 years until he required an additional back surgery in 2007. In evaluating this claim, the Board notes that the opinions provided by the VA examiners in March 2014 and March 2016 are supported by complete, well-reasoned rationales that are based upon consideration of the lay and medical evidence of record. The Board finds particularly probative that there is no opposing medical evidence or opinion of record that establishes or indicates that the Veteran's current lumbar spine disability is related to his in-service back injury. The only evidence of record that suggests the current lumbar spine disability is related to the Veteran's in-service injury are the Veteran's lay assertions; however, his assertions regarding the etiology of his lumbar spine disability are outweighed by the preponderance of the other evidence of record, including the post-service medical evidence, which does not contain any indication of a relationship between the in-service injury and the current disability, and the VA opinions which explicitly state and explain that the current disability is not related to the in-service injury. As such, the Veteran's purported nexus statements are not considered competent or probative evidence favorable to his claims. Instead, the March 2014 and March 2016 VA opinions are considered the most competent, credible, and probative evidence of record regarding the likely etiology of the Veteran's current lumbar spine disability. As the most competent, credible, and probative evidence weights against a finding that the Veteran's lumbar spine disability is related to his military service, his claim must be denied and the benefit-of-the-doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for a lumbar spine disability is denied. REMAND The Veteran is seeking a higher initial rating for his service-connected PTSD disability. Review of the record shows that the AOJ last issued a supplemental statement of the case (SSOC) in June 2016 that considered the evidence of record at that time, including VA outpatient treatment records dated through June 2016. However, since the issuance of the June 2016 SSOC, additional, relevant evidence was added to the record, including a June 2017 VA PTSD examination and VA outpatient treatment records dated from July 2016 to December 2017, which has not been considered by the AOJ with respect to the increased rating claim on appeal. While the Veteran's substantive appeal was received after February 2, 2013, the automatic waiver of initial RO consideration does not apply in this case because the evidence was obtained by VA, rather than submitted by the Veteran. See 38 C.F.R. § 20.1304 (c) (2017) (requiring remand for initial AOJ review of pertinent evidence submitted after notification of certification of the appeal to the Board, "unless this procedural right is waived by the appellant or representative"). Thus, a remand is required for the issuance of a SSOC that considers all evidence currently of record. See 38 C.F.R. §§ 19.31, 19.37. Accordingly, the case is REMANDED for the following action: 1. Update the claims file with any relevant VA treatment records since December 2017. 2. Allow the Oregon Department of Veterans Affairs to submit additional argument in this appeal, if so desired. 3. After completing the above requested actions and any additional development warranted, readjudicate the claim on appeal and furnish the Veteran and his representative an SSOC that addresses all of the evidence received into the record since the June 2016 SSOC. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (West 2012). ______________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs