Citation Nr: 18153166 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-54 261 DATE: November 27, 2018 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) due to military sexual trauma (MST) is granted. FINDINGS OF FACT 1. The competent evidence does not show that the Veteran’s degenerative arthritis of the lumbar spine was incurred in service or manifest within one year of service separation, and the preponderance of the competent evidence is against a finding that it is otherwise related to an in-service injury. 2. The evidence is at least in equipoise as to whether the Veteran has a current diagnosis of PTSD that is related to an in-service stressor that is supported by credible evidence. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1975 to August 1978. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). While the chronic disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, where the evidence shows a “continuity of symptoms” of a chronic disease after service, the chronic disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). 1. Entitlement to service connection for degenerative arthritis of the lumbar spine The Veteran seeks entitlement to service connection for degenerative arthritis of the lumbar spine. She contends that she developed arthritis in her lumbar spine from an injury in service, when she was struck by a truck and pinned against a cement wall. The Board finds that the Veteran is credible in describing such an injury as her report tends to be supported by service treatment records Initially, the Board notes that competent medical evidence shows that the Veteran has a current diagnosis of degenerative arthritis in the lumber spine as shown by August 2013 and September 2016 VA examination reports. While the Board finds that the Veteran is credible in reporting her injury in service, the preponderance of the evidence weighs against finding that her degenerative arthritis of the lumbar spine began in service, manifested to a compensable degree within one year of service, or is otherwise related to the in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d); 3.307, and 3.309. Again, the service treatment records do support that she suffered injury when she was struck by a truck and pinned against a cement wall in September 1976. At that time, the service treatment records show she presented with reports of a trauma to her left hip as result of being struck by a truck and pinned against a wall. She complained of pain in the area of her left hip. X-ray film of the pelvis revealed no bone abnormalities, and the Veteran was assessed with a soft tissue injury of left hip. Importantly, there was no complaint of back problems near the time of the September 1976 motor vehicle accident or subsequent in-service complaints of back problems associated with the accident. Service treatment records and lay statements from the Veteran indicate that she was not treated for symptoms of degenerative arthritis in her lumbar spine during her period of service. On her May 1978 examination prior to separation, her spine was evaluated as normal. The associated report of medical history does show that she reported a history of recurrent back pain, but it was noted that the Veteran reported that her current back pain was associated with her pregnancy. It was noted that she was presently 6 or 7 months pregnant at that time. In addition, there is no indication that the Veteran was diagnosed with arthritis within one year of service separation. Rather, the first post-service medical evidence of chronic back problems comes from a January 2013 private medical statement, in which the Veteran’s treating physician stated that she has been treating the Veteran for low back pain since December 1995. However, it does not identify a diagnosis of arthritis in the lumbar spine. VA medical records show the Veteran was diagnosed with arthritis in the lumbar spine as shown by a May 2013 x-ray. In this case, there is no evidence that the Veteran had degenerative arthritis of the lumbar spine at separation or within one year thereafter. Arthritis must be objectively confirmed by x-ray. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2018). Here, the first x-ray evidence of arthritis comes 2013, which comes decades after her separation from service. Thus, the Veteran is not entitled to service connection for arthritis of the spine, either as a chronic disease incurred during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In addition, the preponderance of the competent evidence is against a finding that the Veteran’s current degenerative arthritis of the lumbar spine is linked to her period of service, to include her reported injury. The Board does acknowledge the Veteran’s statements that she has had back problems since her motor vehicle accident in service. The Board notes that the Veteran is competent to report her experience and symptoms in service and thereafter. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In this case, the Board finds that the Veteran’s lay statements of continuity of back symptoms since her in-service injury are not reliable. The allegations are inconsistent with the contemporaneous record. The service treatment records indicate that the Veteran complained of left hip pain after the motor vehicle accident, and there is no documentation of any complaints of low back pain at that time. In addition, she did not seek follow-up treatment during her remaining time in service, and her separation examination found her spine to be normal. While the Veteran did report recurrent back pain on her May 1978 report of medical history, such symptoms were expressly attributed as pregnancy symptoms and she was noted as being 6-7 months pregnant. Rather, there was no indication of underlying chronic back caused by a prior injury. Next, the Veteran has not established a nexus to service for her current lumbar spine arthritis. The Board finds that the more probative medical opinion of record weighs against a finding that the Veteran’s current lumbar spine disorder is a result of her period of service, to include in-service injury. The September 2016 VA examiner opined it is less likely than not that the Veteran’s diagnosed degenerative joint disease of the lumbar spine was incurred in or caused by her period of service, to include September 1976 motor vehicle accident. The VA examiner’s medical opinion was based on a review of the Veteran’s service treatment records, post-service medical records, and her lay statement, as well as in consideration of a review of the medical literature. The VA examiner’s rationale was that the Veteran’s spine was evaluated as normal on her separation examination, and there was no evidence indicating that the Veteran was evaluated for chronic lumbar spine problems within one year of being released from service, or until decades after her period of service. The VA examiner further reasoned that the service treatment records do not demonstrate that the Veteran sustained any major trauma to the back as a result of the 1976 motor vehicle accident. The service treatment records show the area that was involved was the left hip, and diagnostic evidence at that time and during remaining period of service did not demonstrate skeletal injury or impairment. The VA examiner found that this demonstrated that the Veteran’s lumbar spine was not involved at that time and that the amount of force the Veteran sustained in the 1976 accident was minor in nature. In addition, the VA examiner noted that the medical literature does not associate degenerative changes of the lumbar spine with minor trauma. Rather, the VA examiner found that her present findings were compatible with expected degenerative changes related to the normal process of aging. For these reasons, the Board find the September 2016 VA examiner’s opinion to be highly probative evidence against the Veteran’s claim. The VA examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran’s private physician indicated that the Veteran had degenerative arthritis of the lumbar spine as result of her in-service injury, this appeared to be based on the Veteran’s own reported history of having arthritis due to her injury. See October 2013 private medical statement. Dr. W. did not provide any rationale for his opinion, nor did he address the absence of lumbar spine symptomatology in service or for decades post service. Insomuch as the Veteran may have reported to Dr. W. that her lumbar spine pain was related to her in-service injury, the Board finds that she is not competent to relate current arthritis to service, particularly when she did not have chronic symptoms of lumbar spine arthritis during service and continuous symptoms post-service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additional causal evidence against the claim, and while not dispositive, is the lapse of so many years between discharge and the first documented medical complaints and treatment of chronic back pain problems, in 1995. This 17-year gap after service provides highly probative evidence against these claims. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that “evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran’s health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service”). Based on the foregoing, the competent, credible, and most probative evidence does not show that the Veteran has experienced her current lumbar spine disorder since her period of service to support service connection based on “continuity of symptomatology” for chronic disease. See Walker, supra. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for degenerative arthritis of the lumbar spine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for degenerative arthritis of the lumbar is not warranted. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) The Veteran seeks entitlement to service connection for PTSD. She contends that she has PTSD as a result of sexual assault and harassment in service. Specifically, she reports that she was drugged and raped during service. She reports that she did not remember much of the assault until later, although at the time, she remembers waking up feeling ill, with torn clothes, and had abdominal pain, and she later developed severe pelvic inflammatory disease (PID) and vaginitis. Service connection for PTSD similarly requires (1) medical evidence establishing a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link established by medical evidence between current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f) (2018). The diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a) (2018), which provides that all psychiatric diagnoses must conform to the American Psychiatric Association’s DSM. 38 C.F.R. § 3.304 (f). The Board notes with respect to current diagnosis, VA regulations were amended on August 4, 2014 to reflect the official release of Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-V). See 38 C.F.R. § 4.130 (2018). However, during the pendency of the appeal, the record reflects that the Veteran’s psychiatric health has also been analyzed under the DSM-IV. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Thus, the Board shall consider her appeal in light of both the DSM-IV and the DSM-V criteria. Initially, the Board notes that there is conflicting medical evidence on whether the Veteran has a current diagnosis of PTSD. Specifically, both an August 2013 and February 2016 VA examiners determined that the Veteran did not meet the criteria for PTSD. In the August 2013 VA examination report, the VA examiner noted that the Veteran’s reported symptomology did not satisfy criterion C as she had only two symptoms of avoidance or numbing, instead of at least three. The 2013 VA examiner found that the Veteran’s symptomatology did not support diagnosis of PTSD under DSM-IV. In the February 2016 VA examination report, the VA examiner failed to provide a rationale on why the Veteran’s symptoms did not support diagnosis of PTSD under DSM-V, but it appears that the examiner found that the record failed to verify the incident in accordance with Veteran’s report of events. In contrast, the Veteran’s private and VA treatment records show diagnosis of PTSD. A November 2012 VA initial mental health assessment report shows that based on clinical evaluation and her reported in-service stressor where she was drugged and raped, the Veteran’s symptomatology supported a diagnosis of PTSD based on DSM-IV. Subsequent VA mental health treatment records continue to reflect diagnosis of PTSD. In addition, in a February 2014 statement, the Veteran’s treating VA psychologist confirmed that the Veteran’s symptomatology supports a diagnosis of PTSD based on DSM-IV. The VA psychologist reported that the Veteran had recently been administered the Clinician Administered PTSD Scale for DSM-IV, and the Veteran had scored positive for all 7 criteria for current and chronic PTSD. The treating VA psychologist noted that while the August 2013 VA examination report failed to show evidence of three symptoms for criterion C as required under DSM-IV, the Veteran had exhibited six symptoms for support of criterion C during her recent evaluation. In light of the foregoing, and resolving doubt in the Veteran’s favor, the Board finds that the competent evidence establishes a current PTSD diagnosis. Next, the Board must consider whether there is credible supporting evidence that the in-service stressor occurred. VA has acknowledged that a personal assault is an extremely personal and sensitive issue, many incidents are not officially reported, which creates a proof problem with respect to the occurrence of the claimed stressor. In such situations, it is not unusual for there to be an absence of service records documenting the events the Veteran has alleged. The victims of such trauma may not necessarily report the full circumstances of the trauma for many years after the trauma. Thus, when a PTSD claim is based on in-service personal assault, VA regulations provided that evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. 38 C.F.R. § 3.304 (f)(5); see also Patton v. West, 12 Vet. App. 272, 277 (1999). Examples of such evidence include evidence of behavior changes following the claimed assault. This section (38 C.F.R. § 3.304 (f)(5)) also provides that VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. In Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011), the Federal Circuit held that under 38 C.F.R. § 3.304 (f)(5), medical opinion evidence may be submitted for use in determining whether the occurrence of a claimed stressor, and such opinion evidence should be weighed along with the other evidence of record in making this determination. Id. at 1382 & n. 1. In this case, the Veteran’s service records do not contain evidence of a sexual assault, but her service treatment records do lend support to her contentions as they reflect hospital treatment for PID shortly after she alleges the sexual assault occurred. A January 18, 1976 service treatment record shows the Veteran sought emergency treatment for abdominal cramps. On January 20, 1976, the Veteran presented with complaints of menstrual cramps, increased bleeding, and sharp pain. She was assessed with acute PID and hospitalized for nine days. The January 1976 hospital summary report notes that the Veteran reported a history of increasing abdominal pain for a week, and she had a fever and diarrhea on admission. She was assessed with acute PID and provided antibiotics. Subsequent service treatment records show treatment for vaginitis and acute PID Private treatment records indicate mental health diagnoses associated with sexual trauma in service. In a November 2012 statement, the Veteran’s treating private psychiatrist, Dr. B, noted that the Veteran reported history of in-service sexual assault where she believes she was drugged and rape. She reported that she remembered waking up in the common area of the military installation, and having a sense that something bad had happened. She was disheveled, alone, cold, and she experienced severe abdominal pain. Shortly afterwards, she was diagnosed with PID and hospitalized for a period of two weeks. Dr. B. noted that a diagnosis of PID is most frequently associated with sexual activity. Dr. B. further stated that he had practiced emergency medicine for many years prior to psychiatric practice and he was familiar with diagnosis of PID. He stated that a hospitalization for a two-week period reflects a severe infectious situation. Dr. opined that it is extremely likely that the Veteran was in fact sexually assaulted as she described, and it is more likely than not that the Veteran’s chronic emotional disability is related to or caused by a sexual assault during her period of service. Also, the November 2012 VA initial mental health assessment report shows that the Veteran’s diagnosis of PTSD was based on her report of in-service sexual assault where she was drugged and rape. Her VA psychologist related to the Veteran’s stressor the symptoms of nightmares, anxiety, extreme anger, fear of home invasion, despite living in gated community and has security system. The additional evidence of record consists of medical records from the Veteran’s treating private gastroenterologist. In a July 2016 statement, her private gastroenterologist, Dr. K., stated that diagnostic testing revealed the Veteran had long-term anismus. Dr. K noted that the development of anismus has been associated with sexual abuse based on review of medical literature, and studies have showed that anismus is a marker of prior sexual abuse. Dr. K. opined that given the Veteran’s reported history of sexual assualt, it was more likely than not that the Veteran’s long-term anismus originated from sexual trauma in service. Again, for personal assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. 38 C.F.R. § 3.304 (f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). Here, the private and VA treatment records provide highly probative evidence of both PTSD diagnosis in conformance with the DSM, and corroboration of the in-service stressor of sexual assault. Moreover, the August 2013 VA examiner found that a review of the Veteran’s service treatment records which showed her nine-day hospitalization for acute PID supported a concession that she did suffer a sexual assault during her period of service. However, the VA examiner found that the Veteran’s symptomatology did not support diagnosis of PTSD. The Veteran underwent a VA PTSD examination in February 2016. At that time, the VA examiner opined that it was less likely as not that the Veteran’s service records supported the occurrence of a military sexual assault which was essentially based on absence of reported sexual assault during service. The examiner had indicated that the Veteran reported several symptoms that were associated with PTSD, but did not meet full diagnostic criteria. Based on the examination results and records review, the 2016 VA examiner opined that it was less likely as not that the Veteran had a current diagnosed mental health disorder as a result of the reported military sexual trauma. The Board has reviewed the evidence of record and found no real evidence to contradict that which links her PTSD to reported in-service sexual trauma. Rather, the only negative nexus opinion is based on a finding that the records did not support the occurrence of a military sexual assault. However, as the Board has conceded that the trauma likely did occur, any such opinion is of limited value in assessing this case. The above regulations and precedential cases provide that such medical opinion evidence may be weighed along with the other evidence of record in determining whether a claimed in-service sexual assault occurred. As such, the Board finds the competent and credible evidence of record, to include the medical opinions, are at least evenly balanced on this question, as well as the question of whether the Veteran has diagnosed PTSD due to the in-service assault as described. Under such circumstances, the Board finds that the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran on these material matters. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page)   Accordingly, the Board finds that entitlement to service connection for PTSD is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.304(f)(5). Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel