Citation Nr: 18154975 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-49 411 DATE: December 4, 2018 ORDER Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a psychiatric disability, claimed as post-traumatic stress disorder is remanded. FINDING OF FACT A low back disability is not shown to have been manifest during active service, low back arthritis was not manifested to a compensable degree within one year of separation from service, and a preponderance of the evidence is against a finding that any current low back disability is etiologically related to service or any in-service incident. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Air Force from June 2005 to March 2006, February 2008 to December 2008, October 2009 to March 2010, and November 2010 to January 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Entitlement to service connection for a low back disability The Veteran contends that he is entitled to service for a low back disability, as the alleged disability is the result of an in-service incident. More specifically, in an October 2016 statement, the Veteran stated that while lifting a heavy panel a comrade who was helping lost his balance dropped the panel on his back. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be established without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Caluza v. Brown, 7 Vet. App. 498 (1995). The first requirement for any service connection claim is evidence of the presence of the claimed disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service medical records show that the Veteran was evaluated on two separate occasions in August 2008 for low back pain; admittedly denying a history of trauma but did report engaging in heavy lifting. A separate service medical record indicated that there was “no likelihood of permanent disability, hospitalization, requirement for continuing medical treatments, or request for incapacitation pay resulting from the injury.” In a March 2013 VA back examination, the examiner noted a “normal lumbar spine no lower extremity radiculopathy.” A 2013 imaging study revealed vertebral body alignment was “maintained with no evidence of fracture or subluxation. Intervertebral disc spaces and facet joints are well maintained.” The examiner opined that the claimed disability was less likely than not related to service. The rationale provided was that since August 2008, the Veteran’s record has been silent for treatment or diagnosis of back pain. In an April 2014 private treatment record authored by D.S., M.D., x-rays revealed “mild early disc space narrowing at L4-L5.” In a May 2014 private treatment record, an MRI revealed an “extruded central disc herniation at L4-5 with abutment of both L5 nerve roots. Central disc herniation at L5-S1 with abutment of both S1 nerve roots.” In a September 2016 VA back examination, the Veteran reported injuring his back in 2008 and seeking treatment while in service. The Veteran reported following up with his provider after symptoms worsened in 2014. He stated that following service, he worked a labor-intensive job as a maintenance man and painter. Low back symptoms included flare-ups with functional loss. The examiner noted a diagnosis of a thoracolumbar spine condition. The examiner opined that the Veteran’s low back disability was not related to service. The rationale provided was that the muscle strain the Veteran experienced in service was a soft tissue disorder which usually resolves in several weeks or months without residuals. The examiner highlighted the absence of a spine disability at the 2013 VA examination, and that no further treatment was sought until 2014. The examiner further noted “it is unlikely that in the absence of recent trauma; imaging studies obtained in (2013) demonstrating no acute or chronic finding would suddenly demonstrate disc space changes the following year.” The examiner concluded that in the absence of trauma, decreased lumbar disc space most often occurs as a chronic process from “wear and tear” and is also part of the normal aging process. The Veteran’s post-service work was also indicated as a possible causative factor. The VA examiners have noted that lack of causation between the in-service incidents, findings of a lumbar strain, and degenerative findings several years later. The September 2016 examiner attributed current recent findings to work and natural age process. The normal 2013 x-ray findings further support the examiner’s opinion regarding the later development of a low back disability. The Board acknowledges the Veteran’s assertions that he believes his low back disability stems from the 2008 in-service lumbar strain. As a lay person, the Veteran can speak to the etiology of a disease in which the nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, the question of etiology of a low back disability goes beyond a simple and immediately observable cause-and-effect relationship. Therefore, the Veteran is not competent to provide an opinion on the etiology of a low back disability, and his opinion that his low back disability is the result of active service cannot be assigned any probative weight. Furthermore, the September 2016 examiner opined that the strain was a soft tissue disorder that resolves. The Board finds that the VA examination opinions are the most persuasive evidence because of the training of the examiner. Accordingly, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a low back disability, and the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. The Veteran contends that he is entitled to service connection for tinnitus, as the alleged disability is the result of noise exposure while in active service. The Veteran’s service separation form shows that he served in the 12th Infantry Regiment in the 1st Battalion. At the June 2018 hearing, the Veteran testified that his military occupational specialty was air traffic controller, including air field operations. The Veteran stated that during that time, he traveled to and from helicopter bases through the firing of machine guns. The Veteran asserted that following one rocket attack he was “thrown to the ground” and “couldn’t hear correctly for over a week.” In a March 2013 VA examination, the Veteran reported bilateral tinnitus began about two years prior to the examination. The Veteran described the symptoms as being “periodic, occurring two to three times per month and lasting from fifteen minutes up to one hour in duration.” The examiner noted that they could not provide a medical opinion without resorting to speculation. The reason provided was that the Veteran’s hearing was “normal” and the diagnosis was based on “subjective factors…there is no readily available method to confirm the presence or absence of tinnitus.” When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that examination is insufficient for adjudication because there is no indication the examiner took into consideration the Veteran’s statements of continuity of symptomatology or military occupational specialty. The examiner also noted that the Veteran’s hearing was normal, but did not provide a medical basis as to what significance this has, if any, in determining the etiology of the Veteran’s tinnitus disability. Therefore, a new examination is necessary. 2. Entitlement to service connection for a psychiatric disability, claimed as post-traumatic stress disorder (PTSD) is remanded. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Board notes that in February 2011 the Veteran submitted a claim for service connection for PTSD. In an April 2011 statement, the Veteran asserted that during service he experienced fear of enemy activity. In an October 2016 statement, the Veteran asserted that he experiences symptoms of depression, anxiety, gross impairment in his thought processes, and persistent delusions, among other things. The Veteran believes his symptoms to be consistent with the circumstances and conditions during “combat operations.” A claim is not necessarily limited in scope to a single or diagnosis, and should be construed based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim. Clemons v. Shinseki, 23 Vet. App., 5. The scope of a claim cannot be limited by the terminology used by the lay Veteran, and instead must include any disability reasonably encompassed by (1) the description of the claim, (2) the described symptoms, and (3) any other relevant evidence of record. Clemons v. Shinseki, 23 Vet. App., 5. As a result, the Board will interpret that as a December 2014 notice of disagreement and as claim for psychiatric disability to include PTSD, anxiety, and depression. In a March 2013 VA PTSD examination, the examiner determined that the Veteran did not meet the criteria for a PTSD diagnosis. The examiner noted that there was no mental disorder diagnosis. The Board interprets the Veteran’s October 2016 statement to include a claim for depression and anxiety. Since the Veteran’s last PTSD examination occurred in March 2013, a medical opinion is necessary to determine if any current diagnosed psychiatric disorder is related to service. The matters are REMANDED for the following action: 1. Secure all outstanding VA medical records. If any records cannot be located, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. If records are unable to be obtained (a) notify the claimant of the specific records that VA is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Schedule the Veteran for a VA audiological examination to determine the etiology of tinnitus. The examiner must review the claims file and should note that review in the report. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should provide a rationale for all opinions provided. The examiner should opine as to whether it is as likely as not (50 percent or greater probability) that tinnitus had its onset during active service, is related to the Veteran’s in-service noise exposure; or is otherwise related to his military service. If the examiner determines that the Veteran’s tinnitus is not the result of active service, but should be attributed to some other cause, the examiner should so state, taking into account the Veteran’s full post-service work and medical history. The basis of the opinion cannot be that hearing was normal at separation, without an explanation of why that is significant. 3. Schedule the Veteran for an examination by psychiatrist or psychologist to ascertain the nature and etiology of any current psychiatric disability. The examiner must review the claims file and must note that review in the report. The examiner should diagnose every psychiatric disability currently manifested or which has been manifested at any time during the course of this appeal. The examiner should specifically state if each criterion for a diagnosis of PTSD is met. The examiner must consider the Veteran’s lay statements related to in-service and post-service symptomatology, and contentions of continuous symptoms since service. The examiner must provide a rationale for any opinion provided and should attempt to reconcile any contradictory evidence of record. For each identified psychiatric disability, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that each current psychiatric disability was incurred in service or is due to any incident of service. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel