Citation Nr: 18152882 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 12-03 900 DATE: November 26, 2018 ORDER Service connection for a cervical strain disability is granted. Service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right thumb disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 2, 2016, including on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disorder is related to his period of active service. 2. The evidence is at least in equipoise as to whether the Veteran’s cervical spine disability is related to his period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1974 to December 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in May 2009, April 2012, and October 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2009 rating decision, the RO, in pertinent part, continued its previous denials of service connection for dysthymic disorder, residuals of a right foot injury, cervical neck strain, and residuals of a right hip injury. In the April 2012 rating decision, the RO, in pertinent part, denied service connection for a lung disability. In the October 2013 rating decision, the RO, in pertinent part, denied service connection for a right wrist injury and a right thumb injury. In a February 2017 rating decision, the RO granted entitlement to a TDIU, effective March 2, 2016. However, the issue of entitlement to a TDIU prior to March 2, 2016, remains before the Board as part and parcel of the increased rating claims filed prior to this date. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2017. A copy of the transcript has been reviewed and associated with the claims file. These matters were before the Board in March 2018, at which time the issues of service connection for a cervical strain, right foot disorder, right hip disorder, and acquired psychiatric disorder were reopened and all matters were remanded for additional evidentiary development, including obtaining VA examinations. As set forth in the Board’s March 2018 decision, the scope of the Veteran’s mental health disability claim includes any mental disability that may be reasonably be encompassed by the Veteran’s description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). In the present case, the evidence shows multiple mental health diagnoses, to include depression, anxiety, posttraumatic stress disorder (PTSD), and mood disorder. Accordingly, the Board has recharacterized the issue on appeal as service connection for an acquired psychiatric disorder. Service Connection Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App 439, 449 (1995). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Anglin v. West, 11 Vet. App. 361, 367 (1998). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 1. Entitlement to service connection for a cervical strain disability The Veteran asserts that his cervical spine disability was incurred in service. The record reflects a diagnosis of osteoarthritis of the cervical spine. See e.g., 05/21/2018, C&P Exam. Thus, a present disability has been established by the evidence. The Veteran’s service treatment records reveal multiple traumatic accidents. In July 1978, the Veteran’s right arm was caught between a tailgate of a 2 ½ ton truck and he sustained an injury to his left side after falling. In July 1980, the Veteran complained of neck pain after sustaining an injury during a game of pushball. He was injured in a motor bike accident and beaten with a baseball bat in 1981. Lastly, he was involved in a jeep accident in November 1983. Thus, in-service incurrences have been shown by the evidence. Having established a current disability and in-service incurrences, the remaining question is whether the Veteran’s current cervical spine disability is the result of service. The Veteran’s February 1995 VA treatment records reveal his complaints of neck pain since 1981. During a VA examination performed in April 1995, he complained of neck pain since 1980 and was assessed with a cervical strain. In February 1996, the Veteran complained of neck pain and the examiner assessed the Veteran with multiple joint complaints and listed the cause as undetermined. In May 2002, he was assessed with chronic neck pain. The Veteran submitted a July 2008 statement by R.B., DO. Dr. R.B. indicated that the Veteran was injured in service when he was beaten with a baseball bat. Since that time, he has had intermittent neck pain, which has increased in severity and frequency. Accordingly, Dr. R.B. concluded that the Veteran’s neck pain is secondary to the baseball bat beating. A VA examination was performed in November 2011, at which time the examiner assessed the Veteran with osteoarthritis of the cervical spine and concluded his neck disability was not related to service. The examiner reasoned that the Veteran was not assessed with a cervical spine injury while he was in service and did not have a neck pain listed on his problem list. A subsequent VA examination was performed in May 2018, at which time the examiner concluded that the Veteran’s neck disability was not related to service given that he had no documented neck injury while on active duty and there were no documented neck complaints until 2009. After a review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current neck disability is related to service. In this regard, the service-treatment records reveal numerous traumatic accidents and injuries, including a baseball bat beating. Furthermore, there were documented neck complaints while in service. Following service, the Veteran continued to complain of neck pain and has documented neck complaints commencing in July 1994. Lastly, Dr. R.B. concluded that the Veteran’s neck disability was sustained in the baseball bat beating while he was in service. The Board acknowledges the negative opinions provided by the November 2011 and May 2018 VA examiners. However, the Board gives little weight to these opinions. In this regard, the VA examiners indicated that the Veteran’s neck disability was not related to service because he had no documented neck complaints in-service and did not complain of neck pain post-service until 2009. However, the basis for these opinions is contrary to the evidence. The Veteran’s service-treatment records reveal documented neck complaints in July 1980. Furthermore, his post-service treatment records reveal documented neck complaints as early as 1994. In view of the foregoing, and in consideration of the credible medical evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s neck disability is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 2. Entitlement to service connection for an acquired psychiatric disability The Veteran asserts that his acquired psychiatric disability was incurred in service. Throughout the pertinent time period of this claim, the Veteran has been assessed with PTSD, depressive disorder, anxiety, and mood disorder. Thus, a present disability has been established by the evidence. The Veteran’s service treatment records reveal that he was assessed with acute situational reaction of adulthood with depressive features and depression in April 1980. During the Veteran’s November 1983 separation examination, he reported depression or excessive worry. As discussed herein, the Veteran had numerous traumatic accidents in service, including a fall in July 1978. Accordingly, in-service incurrences have been shown by the evidence. Having established a current disability and in-service incurrences, the remaining question is whether the Veteran’s current acquired psychiatric disability is the result of service. The Veteran’s VA treatment records reveal continued complaints of anxiety and depression after service. In January 1985, the Veteran was assessed with anxiety. In July 1985, he was assessed with alcohol dependency and impulsive personality disorder and noted that he was treated for mental health problems in November 1984. A VA examination was performed in 1995. The examiner assessed the Veteran with dysthymic disorder, also known as depression, and opined that it appeared to be related to separation from service and the circumstances of the latter. In November 1998 and December 1999, the Veteran was assessed with depressive disorder. In September 2001, he was diagnosed with PTSD. The Veteran’s April 2008 VA treatment records reveal that he was assessed with depression relating to his medical condition. The Veteran submitted a July 2008 statement by Dr. R.B. who concluded that the Veteran suffered from depression, insomnia, and anxiety related to his chronic pain from the fall in service. The Veteran submitted an April 2010 mental health evaluation by J.A., M.A., a licensed clinical psychologist. J.A. assessed the Veteran with mood disorder, PTSD, and borderline personality disorder. He indicated that the Veteran’s problems were centered around the military and occurred while he was in the military. It was also found that he showed symptoms of PTSD following these events. J.A. concluded that the Veteran was seriously disturbed in a number of ways having to do with life adjustment, which began in the military. The Veteran underwent VA examinations in November 2011 and June 2016, at which time the examiners concluded that he did not have a mental disorder. Conversely, a VA examination was performed in June 2016 to assess the residuals of the Veteran’s traumatic brain injury (TBI) and the examiner concluded that the Veteran had a mental disorder as a result of his TBI. A VA examination was performed in May 2018, at which time the examiner assessed the Veteran with unspecified depressive disorder, alcohol abuse, and cannabis use. The examiner concluded that the Veteran’s psychiatric disability was not related to service. The examiner noted the Veteran’s mental health treatment in service. However, she found that there was no indication that his mental health concerns persisted past his discharge and he was not treated again until 2006. After reviewing the evidence, and resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder, to include depression and anxiety, is warranted. In this regard, the Veteran’s service treatment records reveal his mental health complaints and treatment, including a diagnosis of depression. During his November 1983 separation examination, he reported depression or excessive worry. Within a year of separation, the Veteran commenced his post-service mental health treatment for alcohol dependency and impulsive personality disorder. Dr. R.B. concluded that the Veteran suffered from depression and anxiety due to the chronic pain sustained in the fall in service and an April 2008 VA treatment record concluded that the Veteran had depression from his medical conditions. Furthermore, J.A., a licensed clinical psychologist, concluded that the Veteran was seriously disturbed in a number of ways, which began while he was in the military. Lastly, a June 2016 TBI examination concluded that the Veteran’s mental disorder was a residual of his TBI. The Board acknowledges the negative opinions provided by the November 2011, June 2016, and May 2018 examiners. However, the Board gives little weight to these opinions. In this regard, the November 2011 and June 2016 examiners found that the Veteran did not have a mental disorder at the same time as his VA treatment records revealed several diagnosed mental health disorders, including generalized anxiety disorder and depression. Furthermore, the May 2018 examiner assessed the Veteran with an unspecified depressive disorder but found that he was not treated post-service until 2006. The basis of this opinion is contrary to the evidence of record which reveals the Veteran’s longstanding mental health treatment commencing in November 1984. As set forth above, under the benefit-of-the-doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for a psychiatric disorder, to include depression and anxiety. REASONS FOR REMAND 1. Entitlement to service connection for a right wrist disability is remanded; 2. Entitlement to service connection for a right thumb disability is remanded. At the outset, the Board notes that additional evidentiary development is required before adjudicating these claims. During the May 2009 VA examination, the Veteran reported that he fractured his wrist and underwent 5 operations due to a work injury. He received compensation from the California Division of Workers’ Compensation and did not return to work following this injury. After a review of the claims file, the Board finds that the records from the California Division of Workers’ Compensation have not been requested. Accordingly, the Board finds that these records should be requested on remand. The Veteran has been assessed with arthritis of his right wrist and right metacarpal bone of the thumb. See e.g., 03/05/1996, Medical Treatment Record- Non-Government Facility, pp. 12-13. The Veteran’s service treatment records reveal multiple injuries to his right hand in 1974, February 1980, and August 1981. In February 1980 he was diagnosed with tendinitis of the right hand. In August 1981, his right thumb was tender and x-rays were ordered to rule out a fracture of the right metacarpal bone. Pursuant to Board’s May 2018 remand instructions, a VA examination was performed in May 2018. The examiner assessed the Veteran with arthritis of the right wrist and status post fracture of the right carpal tunnel. The examiner concluded that the Veteran’s right wrist and thumb injuries were not related to service because he did not raise complaints until a 1985 admission to detox in which his right arm was in a case, indicating post-service injury. Furthermore, the examiner concluded that the Veteran most likely had an accident after separation given that he had two DWI’s (Driving While Impaired). An addendum opinion was issued in June 2018, at which time the examiner concluded that the Veteran’s other service-connected conditions did not affect the remote injury to the right hand/wrist. After a review of the evidence, the Board finds that the May 2018 VA examination and June 2018 opinion are insufficient to determine the present claim. In this regard, the May 2018 examiner did not discuss the Veteran’s documented in-service injuries and diagnoses related to his right thumb and wrist. Furthermore, he concluded that the Veteran’s right thumb and wrist injuries were incurred post-service because of his two DWI charges without providing any reasoning or documented evidence of these post-service injuries. Lastly, the June 2018 opinion indicated that the Veteran’s right wrist and thumb disabilities were not secondary to his service-connected disabilities. However, there is no opinion as to whether these disabilities were aggravated by his service-connected disabilities. Accordingly, the Board finds that a remand is warranted in order to obtain an adequate VA examination. 3. Entitlement to service connection for a right hip disability is remanded. The Veteran’s service treatment records reveal that he was assessed with a bruised hip after an injury playing pushball in July 1980. He testified at the hearing in November 2017 and indicated that he injured his hip in service after dropping on the ground for rolls and weapon training in service. His right hip pain continued and worsened throughout the years. The Veteran submitted a statement by Dr. R.B. dated in July 2008. Dr. R.B. indicated that the Veteran incurred hip pains and aches while in service due to the nature of his military occupational specialty (MOS), including the countless jumps he made from both airplanes and helicopters. However, in light of the fact that the Veteran has no parachutist badge or other direct evidence of such jumps in his personnel records, and considering that the Veteran did not mention any such jumps at his Board hearing, the Board now finds that the underlying information relating to such jumps is not credible and by extension, Dr. R.B.’s opinion based on such activity is not probative. Pursuant to the remand instructions, a VA examination was performed in May 2018, at which time the Veteran was assessed with right joint hip replacement. The examiner concluded that the Veteran’s right hip disability was not related to service given that he only had one documented complaint of bruising in service, which would not lead to a total right hip replacement. The examiner also indicated that he was sure that the Veteran had post-service injuries given that he had several DWI’s. An addendum opinion was issued in June 2018, at which time the examiner concluded that the Veteran’s service-connected musculoskeletal disabilities would not affect his right hip disorder. After a review of the evidence, the Board finds that the May 2018 examination and June 2018 addendum opinion are insufficient to determine the present claim. In this regard, the examiner failed to take into account the Veteran’s lay statements of continued right hip pain due to in-service weapons training. Moreover, the examiner speculated that the Veteran had post-service right hip injuries because he had multiple DWI’s without pointing to any affirmative evidence. Lastly, the June 2018 addendum opinion indicated that the Veteran’s right hip disability was not secondary to his service-connected disabilities. However, there is no opinion as to whether these disabilities were aggravated by his service-connected disabilities. Accordingly, the Board finds that a remand is warranted in order to obtain an adequate VA examination. 4. Entitlement to service connection for a right foot disability is remanded. Pursuant to the Board’s remand instructions, a VA examination was performed in May 2018. The examiner concluded that the Veteran did not have a defined right foot disability. The examiner indicated that he had no fungal rash on his feet at that time and he was not impressed with the diagnosis of hammer toes as there was some movement in the toe joints. After a review of the evidence, the Board finds that the May 2018 VA examination is insufficient to determine the present claim. In this regard, the Veteran’s VA treatment records dated in 2013 and 2014 indicated an assessment of right foot pain. However, the examiner failed to provide an opinion as to whether this foot pain results in functional impairment that affects earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Furthermore, although the examiner indicated that there was no fungal rash or hammer toes on examination, the Veteran was assessed with tinea pedis, history of shingles, and dermatophytosis of the foot throughout the pertinent time frame of this appeal. Accordingly, the Board finds that a remand is warranted in order to obtain an adequate VA examination. 5. Entitlement to service connection for a respiratory disability is remanded. The Veteran has been assessed with chronic obstructive pulmonary disease (COPD), interstitial lung disease, pulmonary fibrosis, and emphysema throughout the rating period on appeal and asserts that it is related to his exposure to asbestos and/or silt dust in service. Pursuant to the Board’s remand instructions, a VA examination was performed in May 2018, at which time the examiner assessed the Veteran with COPD and concluded it was not related to his military service, including any asbestos exposure. After a review of the evidence, the Board finds that the May 2018 VA examination is insufficient. In this regard, the examiner failed to discuss or provide an etiology opinion with regard to the Veteran’s diagnoses of interstitial lung disease, pulmonary fibrosis, and emphysema. Furthermore, the examiner failed to provide an opinion as to whether any respiratory disability was the result of his asserted exposure to silt dust. Accordingly, the Board finds that a remand is warranted in order to obtain an adequate VA examination. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 2, 2016, including on an extraschedular basis, is remanded. Prior to March 2, 2016, the Veteran had a combined disability rating of 50 percent. However, in the present decision, the Board grants service connection for an acquired psychiatric disability and cervical spine disability, which stem from claims filed in February 2009. Furthermore, there is evidence that the Veteran did not return to work due to his wrist injury. Accordingly, the Board will defer adjudicating the claim of entitlement to TDIU until disability ratings are assigned for the acquired psychiatric disability, cervical spine disability, and the workers’ compensation records are obtained from the California Division of Workers’ Compensation. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from June 2018 to the present. 2. Obtain the Veteran’s Workers’ Compensation records related to a right wrist injury in California in the 1980s. Document all request for information as well as responses in the claims file. 3. After completion of #1 and #2, schedule the Veteran for a VA examination, by an examiner who has not provided an opinion in this matter, to assess the nature and etiology of his right wrist, right thumb, right hip, and right foot disabilities. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should identify and discuss any right wrist, right thumb, right hip, and right foot disabilities identified during the examination and the pendency of this claim (2009). For each diagnosed disability, please respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that any right wrist, right thumb, right hip, and/or right foot disability had their onset in and/or are otherwise related to his period of active service? B. If the disabilities are not found to be related to service, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s right wrist, right thumb, right hip, and/or right foot disabilities were caused by his service-connected disabilities? C. If the disabilities are not found to be related to service, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s right wrist, right thumb, right hip, and/or right foot disabilities have been aggravated (worsened beyond its natural progression) by his service-connected disabilities? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of his right wrist, right thumb, right hip, and/or right foot disabilities prior to aggravation? If so, please identify. D. With regard to the Veteran’s pending service connection claim for a right foot disability (other than service-connected achilles tendonitis), if there is no diagnosed disability, is it at least as likely as not (50 percent probability or more) that any pain reaches the level of a functional impairment of earning capacity? If so, describe the impairment caused. If so, is it at least as likely as not (50 percent probability or more) that this pain had its onset during and/or is otherwise etiologically related to the Veteran’s period of active duty service? E. For each disability or disabilities found to be related to service, describe the impact on the Veteran’s ability to work. The examiner must provide a comprehensive rational for each opinion provided. Specifically, the examiner should discuss the in-service traumatic accidents and injuries relating to his right wrist, right thumb, right hip, and right foot disabilities and the Veteran’s assertions set forth throughout the claims file, including the hearing transcript in November 2017. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1 and #2, schedule the Veteran for a VA examination, by an examiner who has not provided an opinion in this matter, to assess the nature and etiology of his respiratory disabilities. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should identify and discuss any diagnosed respiratory disability found on examination and identified during the pendency of this claim (2012), including COPD, interstitial lung disease, pulmonary fibrosis, and emphysema, and respond to the following: is it at least as likely as not (probability of at least 50 percent) that any respiratory disability had its onset in and/or is otherwise related to his period of active service, including the assertions of asbestos and silt dust exposure? The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel