Citation Nr: 18142163 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 16-05 767 DATE: October 16, 2018 ORDER Service connection for a cervical spine disability is denied. Service connection for a neurological disability of the left arm is denied. Service connection for a lumbar spine disability is denied. Service connection for a neurological disability of the right leg is denied. REMANDED Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and bipolar disorder, is remanded. FINDINGS OF FACT 1. A cervical spine disability was not shown in service and is not attributable to service, and arthritis of the cervical spine was not manifest within one year of separation from service. 2. A neurological disability of the left arm was not shown in service and is not attributable to service, and an organic disease of the nervous system affecting the left arm was not manifest within one year of separation from service. 3. A lumbar spine disability is not attributable to service, and arthritis of the lumbar spine was not manifest within one year of separation from service. 4. A neurological disability of the right leg was not shown in service and is not attributable to service, and an organic disease of the nervous system affecting the right leg was not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a neurological disability of the left arm have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for a neurological disability of the right leg have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had periods of service from September to October 1990, July to August 1999, and April to July 2009. He also served in the Maryland Army National Guard in 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran withdrew his pending request for a Board hearing. In characterizing the psychiatric claim on appeal, the Board considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008), which provides that a claim premised on a diagnosis not considered in prior decisions is treated as a new claim without the need for new and material evidence. The RO last denied service connection for borderline personality disorder brought on by stress in a March 2009 final rating decision. Since then, other psychiatric disabilities, such as PTSD, have been diagnosed. As the record reveals that the PTSD diagnosis was not present when the claim was previously denied, the Board finds that the current claim may be considered without regard to whether new and material evidence has been received. Additionally, the psychiatric claim was developed as separate claims for PTSD and bipolar disorder. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claims have been combined and recharacterized to include any psychiatric disability. Similarly, the lumbar spine claim was developed as separate claims for a back condition and back pain. A claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability." Brokowski v. Shinseki, 23 Vet. App. 79, 8 (2009). The claims have been combined and recharacterized to include any lumbar spine disability. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For certain chronic diseases, including arthritis and organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In addition, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury, but not also disease, incurred in or aggravated in the line of duty, or when a cardiac arrest or cerebrovascular accident occurs during such training. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as “summer camp,” which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as “weekend warrior” training. These drills are deemed to be part-time training. The presumption pertaining to chronic diseases under 38 U.S.C. § 1112 does not apply to ACDUTRA or INACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Here, the record does not clearly indicate whether the Veteran’s service from September to October 1990, July 1999 to August 1999, and April 2009 to July 2009 constituted active duty, ACDUTRA, or INACDUTRA. However, remand in this regard is not necessary. As discussed below, a cervical spine disability and neurological disabilities of the left arm and right leg were not shown during any of these periods of service. Thus, the character of service is not needed to decide the claim. For the lumbar spine, the record shows an injury sustained during the 2009 period of service. Thus, even if INACDUTRA, service connection may be considered. In reaching the decisions below, the Board considered the Veteran’s lay statements regarding the etiology of the disabilities. However, the Board finds that the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disorders as cervical spine degeneration, cervical radiculitis, intervertebral disc syndrome, or radiculopathy. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Cervical spine degeneration, cervical radiculitis, intervertebral disc syndrome, and radiculopathy are medically complex disease processes because of their multiple etiologies, the requirement of specialized testing for diagnosis, and the fact that they manifest symptomatology that overlaps with other disorders. The etiology of the Veteran's current disabilities is a complex medical etiological question involving internal and unseen system processes, some of which are unobservable by the Veteran. Cervical Spine & Neurological Disability of the Left Arm The Veteran has current degenerative changes of the cervical spine, documented in a January 2016 private medical record, and cervical radiculitis, documented in a March 2015 private medical record. No abnormalities involving the cervical spine or the left arm were noted on the Veteran’s service entrance examinations, and he raised no pertinent complaints on the accompanying Reports of Medical History. The service treatment records (STRs) show no complaints, treatment, or documentation pertaining to the cervical spine or neurological problems in the left arm. Available separation examinations do not document pertinent abnormalities or complaints. There are no records showing arthritis of the cervical spine or an organic disease of the nervous system affecting the left arm dated from within one year of discharge of any period of service. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claims. The probative evidence does not show that the Veteran's cervical spine disability or neurological disability of the left arm are related to his active military service. The disorders were not found in service or within one year of separation from service; rather, the evidence reflects that the disorders were not shown until years after service discharge. There were no reports of any pertinent disability at discharge and the disorders were not found on his service discharge examination. The fact that he sought treatment for other conditions in or following service, but not a cervical spine disability or a neurological disability of the left arm, weighs against the credibility of any statements that the disorders persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The record does not include an opinion on the matter of service connection. However, in addition to the lack of credible lay or medical evidence showing that a cervical spine disability or a neurological disability of the left arm were incurred during service, the evidence does not link the disorders to service. As there were no relevant complaints, treatment, or diagnoses in service, there is no injury, disease, or event to which a current disorder could be related. Consequently, VA is under no duty to obtain a medical opinion addressing direct service connection. To the extent the Veteran seeks service connection for the left arm disability as secondary to his cervical spine disability, this is not possible because service connection has not been awarded for the cervical spine disability. In reaching this decision the Board considered the doctrine of reasonable doubt; however, the doctrine is not for application. Lumbar Spine & Neurological Disability of the Right Leg The Veteran has current intervertebral disc syndrome of the lumbar spine with radiculopathy, documented in a November 2015 VA examination report. No abnormalities involving the lumbar spine or the right leg were noted on his service entrance examinations. On the Report of Medical History for his 1999 service, he reported recurrent back pain. However, he denied recurrent back pain on the subsequent Report of Medical History for his 2009 service. Physicians found no relevant abnormalities on the entrance examination reports in either 1999 or 2009. There is otherwise no evidence indicating a preexisting back disability. A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b). Given all of this, legal analysis of the claim as a “preexisting condition” is not applicable. The STRs show that in June 2009, the Veteran injured his back when he was pushed into a door jamb while cleaning a classroom. A June 2009 physical therapy record documented lumbago. In a July 2009 follow-up appointment, the range of motion was normal and there were no muscle spasms. He denied any numbness or paresthesia but reported decreased sensation. Neurological testing was normal. Imaging studies were conducted. He was diagnosed with a backache. His DD 214 for the 2009 service lists his separation code as "JFV" (physical condition, not a disability, interfering with performance of duty), and the narrative reason for separation states, "condition is not a disability." However, a review of personnel records shows he was separated from service due to an adjustment disorder and acute reaction to stress, not for any condition related to the lumbar spine or right leg. On VA examination in November 2015, the examiner reviewed the claims file and examined the Veteran. He diagnosed intervertebral disc syndrome with radiculopathy, and found the date of onset of symptoms was May 2010. In the “medical history” section of the report, the examiner documented the Veteran’s apparent report that he was injured in 2010 while being loaded into a cattle truck with over 200 other soldiers. He stated he was pushed, and with the weight of his ruck sack, he fell and his back hyperextended. He was placed on profile, and continued with sharp back pain radiating to the right leg. In a separate report addressing the etiology of the disabilities, examiner opined that the current disabilities were at least as likely as not incurred in or caused by service. As rationale, he stated that the current conditions were a continuation of the back pain documented in July 2009. On VA examination in January 2016, the examiner reviewed the claims file and noted the June 2009 STRs, including the documentation of lumbago, as well as the July 2009 STR. He examined the imaging report from service and summarized its findings. He discussed private records showing a 2010 motor vehicle accident (MVA) that occurred more than one year after discharge. He concluded that the current disabilities were less likely than not incurred in or caused by service. As rationale, he stated that the clinical and imaging findings documented in service are not indicative of the current disabilities. Rather, the more likely cause for the current intervertebral disc syndrome with radiculopathy was the post-service MVA. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claims. The probative evidence does not show that the Veteran's intervertebral disc syndrome with radiculopathy is related to his active military service. The current disabilities were not found in service. There were no reports of any pertinent disability at discharge from any period of service. Further, there are no records showing arthritis of the lumbar spine or an organic disease of the nervous system affecting the right leg dated from within one year of discharge of any period of service. The Board finds that the November 2015 VA examination report is not persuasive because it is based on inaccurate facts. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding medical opinions have no probative value when they are based on an inaccurate factual predicate). The Veteran was not in service in 2010 when the examiner noted the symptoms began, and there is no documentation in his records about being injured in a cattle truck. The STRs do not contain a profile issued for any back disability. Also, the examiner’s reports are inconsistent to the extent he found an onset of symptoms in 2009 in the etiology report, but an onset of symptoms of 2010 in the examination report. Further, the examiner did not consider or discuss the in-service imaging studies or the post-service MVA in rendering his opinion. By contrast, the January 2016 report is persuasive. The examiner considered the Veteran’s contentions, but opined that his disabilities were not related to military service because the in-service imaging studies did not support such a relationship. Another etiology was identified. He based his conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. He reviewed the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. To the extent the Veteran seeks service connection for the right leg disability as secondary to his lumbar spine disability, this is not possible because service connection has not been awarded for the lumbar spine disability. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. REASONS FOR REMAND Initially, as noted, the record is unclear as to whether the Veteran’s service from September to October 1990, July 1999 to August 1999, and April 2009 to July 2009 constituted active duty, ACDUTRA, or INACDUTRA. As discussed further below, the record raises the question of whether the Veteran had a preexisting psychiatric disability. The law, including applicable presumptions and burdens of proof, is different for conditions that preexisted regular active duty, versus those that preexisted ACDUTRA or INACDUTRA. The RO must clarify this matter so that the proper legal analysis can be applied. Also, the notification letter sent to the Veteran does not comply with the requirements of 38 C.F.R. § 3.304(f)(5) for PTSD claims based on personal assault. Compliant notice must be provided to the Veteran, pursuant to the regulation. With regard to the claimed stressor, the Veteran described a military sexual assault to a November 2015 VA examiner, and also in a February 2013 Statement in Support of Claim for Service Connection for PTSD, and provided the date of the incident, location, unit assignment, and individuals present. No efforts were made to corroborate any aspect of the incident. Also, in a February 2017 letter from his attorney, the attorney discussed a 2009 email from the Veteran to his military psychiatrist mentioning being attacked by his sergeant. The Board cannot locate this email in the claims file. On remand, efforts must be made to corroborate the stressor, and the 2009 email must be requested and associated with the file. A VA examination is also needed for the claim. As a threshold matter, the record is conflicting as to whether a psychiatric disability preexisted service. The pertinent evidence in this regard is listed in the remand directive below and should be considered by a VA examiner. Service treatment records are replete with psychiatric complaints, treatment, and diagnoses. VA examinations have been provided, but the reports are problematic. A November 2015 VA examiner’s opinion was founded on the uncorroborated military sexual assault. She also provided unclear findings on whether PTSD was diagnosed, and presupposed that a psychiatric disability preexisted service based on the RO’s inquiry, without discussing the matter. A January 2016 VA examiner concluded that it was less likely than not that the Veteran experienced a military sexual trauma without any clear rationale. Disability Benefits Questionnaires were completed in February 2013 and March 2016, but do not contain actual nexus opinions, and also relied on the uncorroborated military sexual assault. An adequate VA examination, based on a developed record, must be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: 1. Contact the National Personnel Record Center and/or the appropriate service entity and request that it identify the exact dates of all periods of active duty, active duty for training, and inactive duty for training performed by the Veteran, to specifically include the periods of service from September to October 1990, July 1999 to August 1999, and April 2009 to July 2009. The response must be clear and consist of more than a print-out of retirement points. 2. Send the Veteran a notification letter compliant with 38 C.F.R. § 3.304(f)(5) addressing PTSD claims based on personal assault, and allow time for a response. 3. Contact the Veteran in order to ask him to provide any further identifying information, such as dates, locations, etc. that could corroborate the in-service stressor. Additionally, ask him to provide the 2009 email to his military psychiatrist mentioning being attacked by his sergeant, as described in his attorney’s February 2017 letter. Thereafter, take appropriate actions to verify the stressor(s). 4. Afford the Veteran a VA examination with a psychologist or psychiatrist to obtain evidence as to the etiology of his acquired psychiatric disabilities. A rationale must be provided for all conclusions reached. The examiner must address the following: (A.) All current disabilities must be identified. If there is disagreement with any prior psychiatric diagnosis, the examiner must explain why. (B.) Preexisting Disabilities: (i.) State the likelihood of whether any acquired psychiatric disability preexisted any of the Veteran’s three periods of service and why. In doing so, please consider: • Psychiatric treatment records from the 1980s • January 1990 letter from social worker indicating that psychiatric symptoms were related to his mother’s death and had resolved • September 18, 1990 in-service Report of Mental Status Evaluation finding “no apparent psychiatric disorder” • Service entrance examinations for 1999 and 2009 periods of service noting no psychiatric abnormalities. Report of Medial History for 1999 period of service showing the Veteran’s report of nervous trouble • VA examination reports of November 2015 and January 2016, and DBQ reports of February 2013 and March 2016 containing findings of preexisting psychiatric disabilities (ii.) If an acquired psychiatric disability preexisted any period of service, state whether it underwent an increase in underlying pathology during service (iii.) If a preexisting acquired psychiatric disability underwent an increase in the underlying pathology during service, state whether the increase was due to the natural progress of the disease. (C.) Non-Preexisting Disabilities: For all psychiatric disabilities that did NOT preexist service, state whether they are at least as likely as not related to an in-service injury, event, or disease. With respect to PTSD, the RO/AMC must provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events may be considered when determining whether exposure to an in-service stressor has resulted in PTSD. The examiner must then comment upon the link between the current symptomatology and any verified in-service stressor. In doing so, please consider: • Service treatment records, including from September 1990, July 1999, August 1999, and July 2009, documenting psychiatric symptoms • July 2009 in-service statement signed by the Veteran indicating that he “was not a victim of a sexual assault for which an unrestricted report had been filed in the past 24 months” • VA examination reports of November 2015 and January 2016, and DBQ reports of February 2013 and March 2016 JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel