Citation Nr: 18145601 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 10-47 451 DATE: October 30, 2018 ORDER Entitlement to service connection for anxiety disorder is denied. Entitlement to service connection for a disability manifested by blackouts, to include as secondary to anxiety disorder is denied. REMANDED Entitlement to an increased rating for cervical spine disability, evaluated as 10 percent disabling from October 29, 1996 to August 30, 2015, and as 20 percent disabling thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for upper extremity radiculopathy is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has anxiety disorder due to an in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the Veteran has a disability manifested by blackouts due to an in-service event, injury, or disease or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for anxiety disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for a disability manifested by blackouts have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to March 1979 and from February 1991 to March 1995. He also had active duty for training from July to September 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2009 and June 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Petersburg, Florida and Nashville, Tennessee, respectively. The RO in Winston-Salem, North Carolina has jurisdiction of the claims. In March 2014, the Veteran testified during a video-conference hearing before a Veterans Law Judge (VLJ). Although that VLJ has since retired from the Board, the Veteran did not respond to a March 2018 letter asking him if he wanted to have another Board hearing. As such, there is no hearing request and the Board may proceed with appellate consideration. Most recently, in July 2017, the Board remanded these matters for further evidentiary development. Service Connection The Veteran asserts that he has anxiety disorder and a disability manifested by blackouts that are the result of his military service. In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of: (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. See Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Additionally, the Veteran asserts that he has a disability manifested by blackouts that is secondary to his anxiety disorder. Service connection may be established on a secondary basis 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). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Blackouts and anxiety disorder Service treatment records reflect issues with nerves, anxiety, and blacking out. Situational anxiety was diagnosed in March 1976. Subsequent in-service examination in March 1978 and February 1979 revealed no relevant abnormalities. Post-service treatment records reflect a history of anxiety disorder and blackouts. See e.g. August 2015 VA examination report and VA treatment records. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110; Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Thus, the Board finds that the Veteran meets the initial threshold criterion of a current disability with respect to any confirmed diagnosis. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). At the August 2015 VA examination the Veteran reported that he passed out as a child. He was diagnosed with mild unspecified anxiety disorder. The examiner also stated that there was no diagnosis for blackouts because there was no pathology to render a diagnosis. With regard to the Veteran’s claimed disorder of blackouts, the examiner opined that such was less likely than not incurred in or caused by service. The examiner reasoned that review of the Veteran’s record did not show any evidence that his condition of blackouts was caused by service. In the record, the Veteran stated that they started in 1978. Upon examination, the Veteran reported they started in childhood and that his father and children have them. The examiner further explained that “blackouts and anxiety condition are not referring to the same thing. It seems over the course of years various providers have eventually concluded through testing and interview with the [Veteran] (for which he has given various responses over the years), that his blackout spells across his lifespan are a vasovagal response. It is possible that anxiety or stress is one of the triggers for this response. He is not currently having blackouts, has not had one in more than [one and a half] years. He is now retired and his life is not stressful. There is a thread of mild anxiety [and a] tendency to worry noted throughout his record and a bit today in interview. Though at times he has denied anxiety. His anxiety is mild in nature. He still takes the Celexa every day; thus, an anxiety disorder is being diagnosed.” With regard to the Veteran’s diagnosed anxiety disorder, the examiner opined that it was less likely than not incurred in or caused by service because the Veteran’s condition existed prior to service. As noted in the July 2017 remand, the Board found the August 2015 VA examination inadequate to decide the claims on appeal. Specifically, although the Veteran reported in the August 2015 VA examination that he had passed out as a child, there was no notation of a blackout disability on the March 1972 induction examination. As such, the presumption of soundness is for application. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Further, it did not appear that the August 2015 VA examiner considered the Veteran’s service treatment records that show issues with nerves, anxiety, and blacking out. Thus, pursuant to the July 2017 Board remand, the Veteran was to be afforded new VA examinations to determine whether the Veteran’s blackouts and anxiety clearly and unmistakably pre-existed active service and not aggravated in service, as regarding whether the blackouts were secondary to his anxiety disorder. Accordingly, the RO scheduled the Veteran for new VA examinations regarding his service connection claims for anxiety disorder and blackouts in January and February 2018. However, he failed to appear. Under VA regulations, it is incumbent upon the Veteran to submit to a VA examination regarding VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a one-way street). When entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without “good cause,” fails to report for such examination, action shall be taken. 38 C.F.R. § 3.655 (a) (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b) (2017). When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Id. Since the Veteran failed to appear at the examination and did not provide cause for doing so, the service-connection claims shall be decided based on the evidence of record. See 38 C.F.R. § 3.655(b) (2017). The evidence supports a finding that the Veteran suffered from anxiety and blacking out in service. However, there is no medical opinion of record establishing a nexus between a current diagnosis of current anxiety disorder and blackouts and active service. The Board has reviewed medical records indicating that there has been a diagnosis of anxiety disorder and a history of blackouts. Thus, it is clear that there is no evidence that is adequate to provide a medical nexus between a claimed in-service disease or injury and a present anxiety disorder and/or blackouts. There can be no award of service connection without a medical nexus opinion in this case. Indeed, as neither claimed disorder is a chronic disease under 38 C.F.R. § 3.309(a), service connection cannot be awarded solely based on continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 ( Fed. Cir. 2013) The Board has also considered the statements made by the Veteran that his claimed disabilities are due to service. However, because the record does not indicate that the Veteran has the specialized knowledge to attribute his anxiety disorder and blackouts to a specific incident of service, the Board finds that these lay statements are not competent evidence. This is because the and etiology of anxiety disorder and blackouts is a complex medical decision that requires expertise to determine. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). As such, the Board places some probative weight on the Veteran’s statements because he can report on the observable symptoms but he does not have the medical expertise to provide a diagnosis or an opinion as to the origin of his disabilities. Davidson, supra. VA examiners have specialized medical knowledge to make such determinations. Regarding service connection for blackouts on a secondary basis, to the extent that the Veteran contends that his blackouts are secondary to, or have been aggravated by, his anxiety disorder, the Board herein finds that entitlement to service connection for an anxiety disorder is not warranted. Thus, as a matter of law, the Veteran’s claim for service connection for blackouts as secondary to anxiety disorder must fail. Insofar as the condition to which the Veteran claims his blackouts are secondary has not been service-connected, the claim for secondary service connection must also fail. See 38 C.F.R. § 3.310. For this reason, the Veteran’s claim for secondary service connection must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit). While the Board is sympathetic to the Veteran’s contentions, in the final analysis, the Board finds that the preponderance of the evidence is against his claim. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. REASONS FOR REMAND Cervical spine and upper extremity radiculopathy is remanded. The Veteran was last afforded a VA examination of his cervical spine in August 2015. While the examination report contains initial range of motion testing, it does not contain all of the range of motion findings necessary for the Board to competently determine the appropriate disability rating for the Veteran’s service-connected cervical spine disability. Specifically, the VA examination report does not provide the necessary active motion, passive motion, weight-bearing, and nonweight-bearing information as required by 38 C.F.R. § 4.59 (2017), which concerns painful motion of the musculoskeletal system. Because the August 2015 VA examiner did not conduct all such tests, the Board finds that the examination is inadequate under Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, on remand, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Additionally, the United States Court of Appeals for Veterans Claims (Court) issued a new precedential decision which also requires that certain claims also be remanded. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 10. During the August 2015 VA examination, the Veteran reported flare-ups of the neck described as pain when hands become numb and he cannot work above his head or drive. When asked if pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups, the examiner expressed an inability to determine without mere speculation because all three measurements upon current examination were the same. Similarly, when asked if pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, the examiner expressed an inability to determine without mere speculation because all three measurements upon current examination were the same. Thus, this examination is insufficient for adjudication purposes. Therefore, on remand, another examination should be performed in order to address flare-ups of the Veteran’s cervical spine. In light of the above determination, the Board finds it must also remand the Veteran’s claim for increased rating for upper extremity radiculopathy as inextricably intertwined with the issue of entitlement to increased compensation for cervical spine disability, as the evidence developed during the processing of the latter claim may impact the former’s rating. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his cervical spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all cervical pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).” ERIC S. LEBOFF Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel