Citation Nr: 18140751 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-28 547 DATE: ORDER Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A low back disability was noted at entry. 2. The medical evidence clearly shows that the Veteran’s low back disability was not permanently aggravated beyond the natural progression of the disease during his periods of service. CONCLUSION OF LAW A low back disability was noted at entry into service and was not aggravated therein. 38 U.S.C. §1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 2004 to July 2004 and from October 2004 to December 2005. He also had additional National Guard service. This appeal comes to the Board of Veterans’ Appeals (Board) from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Notably, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). While the June 2014 rating decision denied service connection for PTSD, the Board notes that the record contains other psychiatric disorders such as major depressive disorder and alcohol use disorder. Thus, in accordance with Clemons, the Board has recharacterized the issues on appeal as a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). The provisions of 38 U.S.C. § 1111 provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A pre-existing injury or disease noted at entry will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. An important distinction between section 1111’s aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under section 1153, however, the Appellant bears the burden of showing that his preexisting condition worsened in service. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2014). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Factual Background and Analysis A November 2002 private treatment report noted that the Veteran was entering service and presented for an evaluation of scoliosis. The diagnosis was very mild scoliosis and leg length discrepancy. The Veteran’s November 2002 enlistment examination for the Reserves noted that the Veteran had scoliosis at an unknown age. On his February 2005 post-deployment examination, the Veteran reported having back pain during service. A January 2006 VA treatment report noted that the Veteran presented with complaints of lower back pain when he lifted things. The diagnosis was chronic back pain. A November 2007 VA treatment note indicated that the Veteran was using over the counter medication for his back pain. The Veteran underwent a VA examination in May 2016. The examiner noted that the Veteran had a diagnosis of degenerative disc disease of the lumbar spine which was first demonstrated by a January 2016 MRI. The Veteran reported that he hurt his back while in service when he was changing tires on semis around 2005. The examiner indicated that the Veteran clearly had scoliosis prior to his entrance as this was based on very clear documentation. The scoliosis was correctable with leg length discrepancy management. The examiner noted that while the Veteran’s service treatment records noted back pains, there was a large timeframe that was absent of complaints or visits for his back pain after his discharge. The examiner also found that the back complaints on his Post-Deployment examination would not amount to a definition of true aggravation beyond normal progression as this was one comment only, and not one of frequency. The examiner opined that it was less likely than not that the Veteran’s low back disability was truly aggravated beyond its natural progression by his in-service job duties to include changing tires on semis. The examiner noted that the Veteran had also worked for Caterpillar over the years When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a low back disability is not warranted. It is not in dispute that the Veteran had abnormality/disability of his lumbosacral spine prior to his entrance upon active military service. In addition to a November 2002 private record noting very mild scoliosis prior to his enlistment, the Veteran’s November 2002 enlistment examination for the Reserves noted childhood scoliosis while the May 2016 VA examiner indicated that the Veteran clearly had scoliosis prior to his entrance as this was based on very clear documentation. Therefore, the presumption of soundness does not apply. As noted, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). In this case however, there is no indication in the Veteran’s available service treatment records that his underlying low back disability worsened during active service as a result of any acute in-service exacerbation. See Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002), and Hunt v. Derwinski, 1 Vet. App. 292 (1991). Notably, on his February 2005 post-deployment examination, the Veteran reported having back pain during service. However, the most probative evidence indicates that the underlying low back disability was not worsened beyond the natural progress of the disability. Most notably, the May 2016 VA examiner specifically opined that the Veteran’s low back disability was not aggravated beyond its natural progression by his service There is also no medical evidence of record from the Veteran’s time in service or immediately thereafter suggesting that there was a permanent increase in the Veteran’s low back disability beyond the natural progression of the disease during his active duty service. The May 2016 VA opinion constitutes the only opinion to specifically address whether the Veteran’s preexisting low back disability was aggravated by service and the Veteran has not identified, presented, or alluded to the existence of a contrary medical opinion- i.e., one that, in fact, establishes a relationship between a low back disability and service by way of etiology or aggravation. As a result, the Board concludes that the record establishes clearly and unmistakably that the Veteran’s preexisting low back disability did not worsen during his service beyond the natural progression of the disability. Regarding continuity of symptomatology, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the May 2016 examiner specifically noted that while the Veteran’s service treatment records noted back pains, there was a large timeframe that was absent of complaints or visits for his back pain after his discharge. Accordingly, the Board finds that the May 2016 VA examiner accounted for the Veteran’s reports of continuity of symptomatology when determining that the Veteran’s low back disability was less likely than not related to service. As a result, the Board concludes that the record establishes clearly and unmistakably that the Veteran’s preexisting low back disability did not worsen during his service beyond the natural progression of the disability. Therefore, the presumption of aggravation has been rebutted and the claim must be denied. The Board notes the Veteran’s contentions regarding the etiology of his claimed low back disability. To the extent that the Veteran himself contends that a medical relationship exists between his claimed current disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Certainly, the Veteran is competent to report a worsening of symptomatology to warrant application of the presumption of aggravation under 38 U.S.C. § 1153, and there is no reason to doubt his credibility. The Board further finds, however, that the Veteran is not competent as a lay person to offer an opinion on complex medical matters, such as whether the underlying low back disability was permanently worsening beyond the natural progress of the disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, on this question, the Veteran’s assertions are of no probative value. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the low back etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiner provided detailed rationales in support of their opinions and cited to the relevant evidence. For this reason, the May 2016 VA examiner’s opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a low back disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND Following a review of the Veteran’s claims file, the Board finds that further development is required prior to claim remaining on appeal. Notably, the Veteran underwent a VA examination in May 2016. The VA examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD as the Veteran had a non-credible stressor that was not adequate to support the diagnosis of PTSD. The examiner indicated that the Veteran reported that during service he was engaged in distant small arms fire. However, the examiner noted that on his Post-Deployment examination, the Veteran denied any direct engagement with the enemy. The examiner also noted that past VA physicians had diagnosed the Veteran with depression and anxiety disorder rather than PTSD. The examiner also indicated that the Veteran had alcohol use disorder which was not related to his service. While the May 2016 VA examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD based on a non-credible stressor, the Board notes that the Veteran’s personnel record contains a January 2006 Memorandum from the Indiana National Guard which indicates that the Veteran’s unit received fire and received improvised explosive device (IED) blasts. The January 2006 Memorandum specifically named the Veteran and indicated that on February 25, 2005 he was engaged by an IED. Additionally, a June 2006 Memorandum recommended a Combat Action Badge packet for the Veteran based on his service. The Board also notes that a VA physician in October 2007 diagnosed the Veteran with acute stress disorder while noting that the Veteran was vulnerable for increased trauma. An examination or opinion is necessary to make a decision on a claim if the evidence of record contains competent evidence that the claimant has a current disability, and indicates that the disability or symptoms may be associated with the claimant’s active military history, but does not contain sufficient medical evidence to make a decision on the claim. See 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4). Therefore, the Board finds that a new examination is warranted to provide an opinion on whether the Veteran has a current diagnosis of PTSD which was related to his service to include accounting for his reported stressors. Additionally, the record also demonstrates that the Veteran has been diagnosed with anxiety disorder and depressive disorder which was again noted by the May 2016 VA examiner. However, the May 2016 VA examiner only found that the Veteran had alcohol use disorder which was not related to the Veteran’s service. Therefore, a new examination is also warranted to provide an opinion on whether an acquired psychiatric disorder aside from PTSD was related to the Veteran’s service. Accordingly, the Board finds that he should be scheduled for a VA examination and opinion to determine whether the Veteran has a current acquired psychiatric disorder, to include PTSD that is related to service. The matter is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the above development has taken place, schedule the Veteran for a VA examination to determine the etiology of the claimed acquired psychiatric disability to include PTSD. Based on a review of the record and an examination of the Veteran, the examiner should determine whether the nature, extent of severity, and etiology of any psychiatric disorder(s) which may have been present at any time during the pendency of this appeal. The examiner should provide a diagnosis for any psychiatric disorder that existed during the pendency of this claim. After the record review and examination of the Veteran, the VA examiner should determine whether it at least as likely as not (50 percent or greater probability) that any such psychiatric disorder, to include PTSD if diagnosed, is related to any incident of the Veteran’s active duty service, to include a fear of hostile military or terrorist activity. In making this determination, the examiner should specifically address the January 2006 Memorandum from the Indiana National Guard which indicates that the Veteran’s unit received fire and received IED blasts. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel