Citation Nr: 18149879 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-47 713 DATE: November 14, 2018 ORDER Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to an initial compensable rating for post-traumatic arthritis of the right long finger is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. FINDING OF FACT The evidence of record does not reflect a current diagnosis for a back condition other than pain, but without objective indications of functional impairment. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. § 3.303(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from March 1964 to June 1967. The record does not reflect a diagnosis of post-traumatic stress disorder (PTSD) per VA regulations. However, the record suggests that the Veteran may have a mental disorder(s) other than PTSD. The Court of Appeals for Veterans Claims (Court/CAVC) has held that when a veteran claims service connection, he or she is not claiming service connection for a specific diagnosis but for his or her symptoms regardless of the diagnosis, and the claim encompasses the underlying condition, regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). As such, the Board has recharacterized the issue as one for service connection for an acquired psychiatric disorder. Entitlement to service connection for a low back disability 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(a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has a low back condition related to his in-service duties working in the print shop and carrying heavy boxes of paper up and down angled ladders. However, the record does not reflect that the Veteran has a current diagnosis for a back disability. The evidence of record reflects consistent reports and documentation of back pain. The Board notes that pain, by itself, is not a disability for which service connection can be granted by VA. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Nor does the record reflect that the Veteran’s back pain has resulted in functional impairment. See Saunders v. Wilkie, ___ F. 3d ___, No. 2017-1466 (Fed. Cir. April 3, 2018). A current disability is the cornerstone of a service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, lacking a current diagnosis, service connection cannot be established, and the claim must be denied. The Board acknowledges the Veteran’s assertions in the April 2012 correspondence that his back problems culminated in him having surgery. Initially, the Board notes that an August 2009 treatment note from White City VA Medical Center (VAMC) indicates that the Veteran had back surgery related to a work injury. Additionally, the evidence does not reflect any current residuals of a back surgery, other than pain, but, as noted, without indication of functional impairment. As discussed, lacking evidence of a current diagnosis for a back disability, the Veteran does not meet the threshold criteria for establishing service connection. Brammer v. Derwinski, 3 Vet. App. at 225. The Board acknowledges the assertions by the Veteran and his attorney that he noted back problems on his entrance examination, which suggests that his back condition was aggravated by his service. However, the Board notes that lacking a current diagnosis, service connection cannot be established based on any theory of entitlement. The Board also acknowledges the assertions of the Veteran’s attorney that a VA examination was not provided regarding the Veteran’s claim for a back disability. However, the Board does not find that VA’s duty to assist has been triggered with regard to the claim for service connection for a back disability. Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Here, as discussed, the Veteran does not have a current diagnosis or persistent or recurrent symptoms of a diagnosis other than pain. As such, there is also no basis to afford the Veteran a VA examination. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for post-traumatic arthritis of the right long finger is remanded. Remand is necessary for a new VA examination to assess the current nature and severity of the Veteran’s right finger disability. The Veteran was last afforded a VA examination for this condition in September 2013. Initially, the Board notes the assertions by the Veteran’s attorney that the examiner did not properly assess whether the Veteran has neurologic impairment given that he has impaired, weakened and painful movement. As the Board may not make medical determinations, remand is necessary to assess the Veteran’s assertions, via his representative, of neurologic impairment of his right finger disability. The Veteran’s attorney also indicated that the Regional Office determined that the Veteran was not eligible for a higher evaluation for arthritis in two or more joints because the arthritis in the other joints was attributed to the Veteran’s arthritis of the right long finger. The attorney stated that there is no medical opinion offered as part of the 2013 VA evaluation regarding the origin of the arthritis in other parts of the Veteran’s hand. Per these statements, on remand, the examiner is asked to provide an opinion as to the origin of the arthritis in the Veteran’s other joints of the right hand. Additionally, the rating criteria regarding the musculoskeletal system have changed since the 2013 examination. As such, remand is also necessary for an examination in accordance with current rating criteria. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has also held that, “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that, “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Additionally, as the 2013 examiner indicated that the Veteran reported flare-ups of the right finger, the Board notes in advance that the Court recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In that case, the Court held that a VA examiner must attempt to elicit information from the record and from the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. The Court also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. As such, in the VA examination conducted per this remand, if the examiner determines that he or she is unable to estimate motion loss in terms of degrees during periods of flare-ups regarding the Veteran’s service-connected right finger disability, the examiner must review the record and attempt to elicit functional impairment information from the Veteran before stating that a degree estimate of range of motion loss due to functional impairment cannot be given. The examiner must then still provide an explanation of any inability to estimate motion loss in terms of degrees. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran seeks service connection for PTSD. The Veteran was afforded an initial PTSD VA examination in September 2013. The examiner indicated that the Veteran does not meet the criteria for a diagnosis of PTSD per the DSM-V. As the Veteran’s appeal was certified to the Board after August 4, 2014, the DSM-V is applicable. The Board acknowledges the assertions by the Veteran’s attorney that a VA psychiatrist diagnosed the Veteran with PTSD in June 2013, but the September 2013 VA examiner did not discuss this diagnosis. However, the Board has reviewed the June 2013 mental health note, which is from White City VAMC. The June 2013 examiner stated that the Veteran’s PTSD and possible treatment was discussed. The examiner stated that the results of the PTSD screen were reviewed and that the examiner personally evaluated the Veteran, including inquiry about feelings of hopelessness, suicidal thoughts, suicide plan if thoughts are present, and prior suicide attempts. However, the examiner stated that based on the evaluation, there was no mental health condition requiring further intervention. The examiner further stated that the Veteran endorses PTSD symptoms but treatment is not expected/required at this point. The examiner did not indicate a clinical diagnosis for PTSD. As such, the Board finds that the September 2013 VA examiner adequately addressed the issue of whether the Veteran has a diagnosis of PTSD. However, the record suggests that the Veteran may have symptoms of a mental disorder, which the September 2013 VA examiner did not assess. The VA examiner noted that the Veteran reported emotional distress, anxiety, and nervousness in response to funerals, hearing TAPS, and watching movies involving explosions. However, the examiner also indicated that the Veteran denies depression, anxiety, psychosis, or any other symptoms of other mental disorders. As the findings are inconsistent with regard to anxiety, the Board finds that clarification is needed. See Savage v. Shinseki, 24 Vet. App. 259 (2011) (the Board may have a duty to seek clarification of unclear or insufficient medical opinions). Moreover, other evidence of record reflects that the Veteran has reported anxiety as well as substance abuse issues. Additionally, a March 2012 progress note from White City VAMC indicates that the Veteran had suicidal ideation. As the record suggests symptoms of a mental disorder, remand is necessary for a new VA examination to assess whether the Veteran has a diagnosed mental disorder other than PTSD that is related to his active service. The matters are REMANDED for the following action: 1. Have the Veteran identify any additional treatment records regarding his right finger disability. Obtain any outstanding VA records. For any identified private treatment records, provide the Veteran an authorization to release the records. If received, obtain the records. 2. After obtaining any additional records, schedule the Veteran for a new VA examination with an appropriate examiner to ascertain the current severity and manifestations of his service-connected right finger disability. The claims file must be made available to the examiner, and the examiner should state in the opinion that review of the electronic record was accomplished. The examiner must consider the Veteran’s lay statements and provide all information required for rating purposes. i) Specifically, the examiner is advised that it is necessary to consider, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. ii) Additionally, the examiner must test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-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. iii) Importantly, in regard to additional functional loss due to flare-ups, the examiner must clearly state that he or she reviewed the record and attempted to elicit functional impairment information from the Veteran before stating that a degree estimate of range of motion loss due to functional impairment cannot be given. The examiner must also provide an explanation of any inability to estimate motion loss in terms of degrees. iv) The examiner is also asked to provide an opinion as to the origin of the arthritis in the Veteran’s other joints of the right hand. 3. Schedule the Veteran for a new VA examination regarding mental disabilities other than PTSD. First, the examiner is asked to identify any current mental health disorder other than PTSD. For each current diagnosed disability, the examiner is asked to provide an opinion as to whether it is at least as likely as not that the disability was incurred in or is otherwise related to the Veteran’s service. 4. After completing the above actions, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case. Thereafter, the case should be returned to the Board for further consideration where appropriate. 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). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel