Citation Nr: 18155667 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 14-01 151 DATE: December 4, 2018 ORDER Entitlement to service connection for cervical degenerative arthritis is granted. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder prior to May 14, 2015 is denied. REMANDED Entitlement to service connection for a respiratory disorder manifested by a chronic cough, to include due to an undiagnosed illness is remanded. Entitlement to service connection for gastroesophageal reflux disease, to include due to an undiagnosed illness is remanded. Entitlement to service connection for left upper extremity radiculopathy, to include secondary to cervical degenerative arthritis is remanded. Entitlement to service connection for right upper extremity radiculopathy, to include secondary to cervical degenerative arthritis is remanded. Entitlement to service connection for left lower extremity radiculopathy, to include secondary to degenerative disc disease with a L2-L3 disc bulge is remanded. Entitlement to service connection for right lower extremity radiculopathy, to include secondary to degenerative disc disease with a L2-L3 disc bulge is remanded. Entitlement to a rating in excess of 20 percent for degenerative disc disease with a L2-L3 disc bulge is remanded. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder since May 14, 2015 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. REFERRED The issues of entitlement to service connection for residuals of a bilateral carpal tunnel syndrome repair were raised by the September 2017 VA neurological examination report. These issues, however, are not currently developed or certified for appellate review. Accordingly, these matters are referred to the RO for appropriate consideration. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether cervical degenerative arthritis was manifested to a compensable degree within one year of separation from active-duty service. 2. Prior to May 14, 2015, the Veteran’s posttraumatic stress disorder was not manifested by symptoms causing occupational and social impairment with reduced reliability and productivity.   CONCLUSIONS OF LAW 1. Cervical degenerative arthritis is presumed to have been incurred inservice. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309. 2. Prior to May 14, 2015, the criteria for entitlement to a rating in excess of 30 percent for posttraumatic stress disorder were not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from December 1988 to May 1989, and on active duty from November 1990 to July 1991, August 2004 to August 2005, and December 2013 to November 2014. Cervical degenerative arthritis The Veteran contends that cervical degenerative arthritis is etiologically related to an in-service injury. Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection for arthritis may be established on a presumptive basis if the disorder was manifested to a compensable degree within one year following discharge from active duty. 38 C.F.R §§ 3.307, 3.309(a). A veteran is presumed sound on entry onto active duty except for disabilities noted on examination for entry. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. If a pre-existing disorder is noted upon entry into service, a veteran cannot bring a claim for direct service connection for that disorder, but a veteran may bring a claim for service-connected aggravation of that disorder. In such a case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; see 38 C.F.R. § 3.306; Jensen at 1417; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In this case, after reviewing the evidence of record the Board concludes that cervical degenerative arthritis was first manifested to a compensable degree within one year of the claimant’s separation from active-duty service. Service medical records reflect that in August 2014, the Veteran reported a one-week history of neck pain. The Veteran reported that she was doing pushups and felt a sharp pain in her neck which radiated to the back of the head. At a September 2015 VA examination, the examiner noted that March 2015 cervical x-rays demonstrated degenerative changes of the cervical spine, but also noted that May 2007 x-rays demonstrated cervical spondylosis. The examiner assigned a diagnosis of multi-level cervical disk disease and opined that the disorder was less likely than not incurred in or caused by the Veteran’s period of active-duty service, and that there was “no evidence” of aggravation of preexisting spondylosis. In September 2017 a VA examiner diagnosed degenerative arthritis of the spine based on the results of the March 2015 x-ray. The examiner opined that the disorder was present during the Veteran’s period of active service from December 2013 to November 2014 and was aggravated thereby. In this case the available medical evidence of record indicates that the Veteran was first diagnosed with cervical arthritis based on x-ray findings in March 2015, less than one year after her separation from active duty. As well, the September 2015 VA examiner reported forward cervical flexion limited to 15 degrees, a finding which would support a compensable rating. Thus, service connection is warranted under 38 C.F.R §§ 3.307 and 3.309(a). The Board acknowledges that the September 2015 VA examiner opined that cervical spondylosis was shown on x-ray on May 30, 2007, and therefore a cervical disorder preexisted the Veteran’s period of active duty from December 2013 to November 2014. However, it is not clear from the record whether the cervical spondylosis demonstrated on the May 2007 x-ray is the same disorder as the cervical degenerative arthritis diagnosed by the September 2015 VA examiner. A cervical spine disorder was not noted on entry to active duty in December 2013. Hence, to rebut the presumption that the appellant’s neck was sound there must be clear and unmistakable evidence to that effect. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. No medical examiner has ever opined that cervical degenerative arthritis clearly and unmistakably preexisted service. Therefore, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s cervical degenerative arthritis was first manifested by the March 2015 x-ray findings. Given that the totality of the evidence is at least in equipoise as to whether the Veteran’s cervical degenerative arthritis was first manifested to a compensable degree within one year following discharge from active duty, service connection for cervical degenerative arthritis is granted. Posttraumatic stress disorder prior to May 14, 2015 The Veteran contends that her posttraumatic stress disorder was more severely disabling than represented by the currently assigned 30 percent rating for the term prior to May 14, 2015. The Veteran was granted service connection for posttraumatic stress disorder in an October 2006 rating decision, effective from August 16, 2005. The Veteran claimed entitlement to an increased rating on February 27, 2015. That claim was denied and she appealed. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s posttraumatic stress disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the general formula, a 30 percent evaluation is assigned when the evidence demonstrates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. The Board observes that to adequately evaluate and assign the appropriate disability rating to the Veteran’s service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the enumerated factors listed in 38 C.F.R. § 4.130, Diagnostic Code 9411. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV), a global assessment of functioning score reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." Richard v. Brown, 9 Vet. App. 266 (1996). The nomenclature in DSM IV was previously adopted by VA in the evaluation of mental disorders. 38 C.F.R. §§ 4.125, 4.130. A global assessment of functioning score of 61 to 70 reflected some mild symptoms, or some difficulty in social, occupational, or school functioning, but that a veteran was generally functioning pretty well, with some meaningful interpersonal relationships. DSM-IV at 32. Carpenter v. Brown, 240 (1995). A global assessment of functioning score was not dispositive of the level of impairment caused by a psychiatric illness. Rather, it was considered in light of all of the evidence of record. 38C.F.R. § 4.126 (2016); Brambley v. Principi, 17 Vet. App. 20, 26 (2003). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Id. After a complete review of the record, the Board finds the severity of the Veteran’s posttraumatic stress disorder did not more nearly approximate the criteria for a 50 percent rating, prior to May 14, 2015. At a May 2015 VA examination, the Veteran’s psychiatric symptoms included recurrent distressing dreams, avoidance of or taking efforts to avoid external reminders of the traumatic events, a markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, sleep disturbance, a depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The May 2015 examiner noted that the Veteran described her daily mood as “crappy,” and that she reported irritability, being suspicious of her husband, intolerant of her boss at work and angry over the way she was treated by her superiors in the military. The examiner summarized the level of disability as “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.” A global assessment of functioning score of 65 was assigned. While the examiner reported “disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting,” the record preponderates against finding that these symptoms, alone or in combination, were productive of occupational and social impairment with reduced reliability and productivity. In this regard, VA treatment records pertinent to this period report that the Veteran maintained full time employment, and primarily attributed deficits in her work performance to physical, rather than psychiatric disability. Although the examiner noted symptoms of “irritability with angry outbursts,” there is no evidence that this symptom was productive of occupational and social impairment with reduced reliability and productivity. Additionally, the Board acknowledges that the Veteran has reported difficulty in her relationships due to posttraumatic stress disorder symptoms. Notably, a December 2014 VA treatment record noted that the Veteran’s relationship with her husband was “stressed” due to her suspicions of infidelity, and not due to a specific psychiatric symptom. She further reported having a “good” relationship with her four children, having a close friend, and attending church regularly. Most probatively, however, the May 2015 examiner assessed the overall severity of the Veteran’s psychiatric symptoms as producing only “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.” The medical evidence of record therefore preponderates against finding that posttraumatic stress disorder was productive of more severe occupational impairment so as to warrant a higher rating. The May 2015 examination did not demonstrate symptoms such as circumstantial, circumlocutory, or stereotyped speech; panic attacks, difficulty in understanding complex commands, impairment of short and long-term memory, or impaired judgment or impaired abstract thinking. There are no other records demonstrating these symptoms prior to May 14, 2015. Accordingly, the preponderance of the medical evidence of record is against finding that the Veteran’s posttraumatic stress disorder was productive of occupational and social impairment with reduced reliability and productivity. While the Board acknowledges the Veteran’s competence to testify to events and symptoms as she has experienced them, the degree to which specific symptoms and social and occupational impairments are attributable to her posttraumatic stress disorder is a question which is complex in nature. See Jandreau v. Nicholson, 492 F.3d 1372 at 1376 (Fed. Cir. 2007). As such, the Board assigns greater probative weight to the opinion of the May 2015 VA examiner that posttraumatic stress disorder was not productive of occupational and social impairment with reduced reliability and productivity. Therefore, entitlement to an increased rating for posttraumatic stress disorder prior to May 14, 2015, is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Gastroesophageal reflux disease Evidence of record suggests that the Veteran’s service-connected disabilities, to include her cervical and lumbar disorders, require the use of multiple medications. Particularly given that the Veteran is service connected for two orthopedic disorders which are treated with pain medication, remand is required to obtain a medical opinion addressing whether the Veteran’s gastroesophageal reflux disease was caused or is aggravated by medications taken for her service-connected disabilities. A respiratory disorder manifested by a chronic cough At a May 2015 VA examination, the Veteran found that the appellant had a chronic cough. A June 2015 VA examiner opined that the Veteran did not have either a diagnosed chronic cough, or an undiagnosed illness reasoning that her symptoms were merely “subjective.” Subsequent VA treatment records indicate that the Veteran has continued to pursue treatment for a chronic cough. The June 2015 VA examiner’s opinion appears to be in conflict with the objective evidence of symptoms of a cough and remand is necessary to obtain a new medical opinion. Additionally, a June 2018 VA treatment record noted that the Veteran’s chronic cough may be related to her gastroesophageal reflux. Therefore, if the latter disorder is found to be service connected, an opinion should be obtained addressing this etiological theory. Upper extremity radiculopathy The Veteran asserts that she has upper extremity radiculopathy related to her cervical degenerative arthritis. Given that cervical degenerative arthritis has been found to be service connected, remand is necessary to obtain a VA examination addressing the nature and etiology of any associated upper extremity radiculopathy. Lower extremity radiculopathy A September 2015 VA examiner declined to diagnose any lower extremity radiculopathy. A September 2018 VA treatment record reported a worsening of the Veteran’s low back disorder, stating that “the back … has pieces of disc that have popped out and are pinching a nerve on each side.” Given this new evidence, remand is necessary to obtain a new VA examination to consider the nature and etiology of any diagnosed lower extremity radiculopathy. Degenerative disc disease with L2-L3 disc bulge Following the December 2015 supplemental statement of the case, and prior to the transfer of the case to the Board, additional relevant evidence was associated with the Veteran’s claims file. Specifically, the Veteran was afforded a VA examination to consider the severity of her low back disorder in July 2018. Despite the receipt of this pertinent evidence a supplemental statement of the case addressing this evidence was not issued. See 38 C.F.R. § 19.31 (b)(1) (A supplemental statement of the case will be furnished if the RO receives additional pertinent evidence after a statement of the case or a supplemental statement of the case has been issued and before the appeal is certified to the Board and the appellate record is transferred to the Board). Further development is therefore required as the Veteran is entitled to a supplemental statement of the case that reflects consideration of the additional pertinent evidence. Id. Posttraumatic stress disorder since May 14, 2015 The Veteran was last provided a VA psychiatric examination in June 2015. In her January 2016 VA form 9, the Veteran stated that posttraumatic stress disorder “has worsened since my last deployment.” At her June 2018 Board hearing, the Veteran’s representative requested that the Veteran be provided a new VA examination to address the severity of her posttraumatic stress disorder. As such, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the disability. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Individual unemployability The issue of entitlement to a total disability evaluation based on individual unemployability must be deferred pending the development requested herein. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for the second issue). Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2018 to the present. If the RO cannot locate such records, it must 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. The RO must then: (a) notify the claimant of the specific records that it 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 claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of any diagnosed upper or lower extremity radiculopathy. For any upper extremity radiculopathy diagnosed at any time since July 1, 2015, the examiner must opine whether it is at least as likely as not proximately due to the appellant’s service-connected cervical degenerative arthritis. If not, the examiner must address whether any upper extremity radiculopathy is aggravated beyond its natural progression by cervical degenerative arthritis. For any lower extremity radiculopathy diagnosed at any time since July 1, 2015, the examiner must opine whether it is at least as likely as not proximately due to the appellant’s degenerative disc disease with L2-L3 disc bulge. If not, the examiner must address whether any lower extremity radiculopathy is aggravated beyond its natural progression by the degenerative disc disease with L2-L3 disc bulge. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must 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. 3. Thereafter, obtain a medical opinion from an appropriate clinician addressing whether it is at least as likely as not that any gastroesophageal reflux disease diagnosed since February 27, 2015 is related to active service or events therein, to include inservice exposure to oil fields, burn pits, “chemicals” and wastewater as noted in the May 2015 VA examination report, and June 2018 Board hearing testimony. The examiner must opine whether the Veteran’s gastroesophageal reflux disease diagnosed since February 27, 2015 is at least as likely as not proximately due to any prescription or over-the-counter medication used to treat the appellant’s service-connected disorders. If not, the examiner must address whether gastroesophageal reflux disease is aggravated beyond its natural progression by any prescription or over-the-counter medication used to treat the appellant’s service-connected disorders. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must 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. 4. After completing directive one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed respiratory disorder, or disorder manifested by a chronic cough. The examiner is to indicate whether the Veteran’s chronic cough is due to a known clinical diagnosis or whether it is due to an undiagnosed illness or medically unexplained chronic multi-symptom illness. If the complaints are related to a known clinical diagnosis, the examiner must opine whether it is at least as likely as not that the diagnosed illness is related to active service or events therein, to include exposure to oil fields, burn pits, “chemicals” and wastewater as noted in the May 2015 VA examination report and June 2018 Board hearing testimony. If the complaints are related to a known clinical diagnosis and if, and only if, the Veteran’s gastroesophageal reflux disease has been found to be service connected, the examiner must also opine whether any such known clinical diagnosis is at least as likely as not proximately due to gastroesophageal reflux disease. If not, the examiner must address whether any such known clinical diagnosis is aggravated beyond its natural progression by gastroesophageal reflux disease. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must 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. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel