Citation Nr: 18157626 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-52 255 DATE: December 13, 2018 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for deep vein thrombosis (DVT) of the lower extremities is denied. Entitlement to service connection for post-traumatic stress disorder (PTSD), also claimed as depression, is denied. FINDINGS OF FACT 1. The Veteran’s current cervical spine disability did not have its onset during active service and is not related to active service. 2. The Veteran’s DVT of the lower extremities did not have its onset during active service and is not related to active service. 3. The Veteran’s PTSD did not have its onset during active service and is not related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.3 (2017). 2. The criteria for service connection for DVT of the lower extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.3 (2017). 3. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 4.3 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from August 1979 to June 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in October 2015. A statement of the case (SOC) was issued on October 5, 2016, and the Veteran filed his VA Form 9 on October 17, 2016. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’- the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without sufficient evidence of a current disability and sufficient evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). 1. Cervical Spine The Veteran contends that he is entitled to service connection for a cervical spine disability. The Veteran filed a claim of service connection for a cervical spine disability in February 2014. At the Veteran’s February 2015 VA examination, the examiner diagnosed the Veteran with cervical spine strain with first degree retrolisthesis and radiculopathy (bilateral lower radiculopathy group). Thus, the Veteran meets the criteria for a current disability of a cervical spine condition, and he fulfills the first of the three requirements for service connection. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To qualify for service connection for a cervical spine disability, the Veteran must next have in-service incurrence or aggravation of a cervical spine disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Here, the Veteran’s service treatment records (STRs) show that in June 1980, the Veteran was treated for persistent neck pain, acute neck pain, neck muscle spasm, and tension headaches after the Veteran was involved in a motor vehicle accident. The medical professional described the neck spasm as being of a “whiplash” type. The Veteran was given a soft cervical collar to wear for relief. The Veteran’s STRs also contain a related cervical spine series examination that noted the motor vehicle accident and muscle spasms due to trauma. In July 1980, the Veteran’s STRs indicate that he had a left trapezius spasm and resultant headaches since the collision, and the medical professional noted that the Veteran had returned with cervical pain. Thus, the Board acknowledges that the Veteran had cervical spine pain and muscle spasms related to a motor vehicle accident in service, and the second element required to establish service connection is met. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Therefore, this issue turns on the third element of service connection – the “nexus” requirement – and whether the Veteran’s currently diagnosed cervical spine disability is causally related to his in-service cervical spine condition. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). At the Veteran’s February 2015 VA examination, the examiner determined that the Veteran’s claimed disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that, although medical records show the Veteran being treated for a neck condition while in service, there are no medical records showing continuity of care for the condition over the years or to show that the current cervical spine disability is a continuation of the condition treated while in service. There is no objective evidence of record showing any complaint, diagnosis, or treatment of a cervical spine condition for over 28 years between the Veteran’s time in service and his February 2014 claim of entitlement to service connection for a cervical spine disability. Under Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000), a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim such that it weighs against the claim. Additionally, at the Veteran’s separation examination in June 1986, his spine and neck were noted to be normal. In the Veteran’s Report of Medical History from the same date, the Veteran reported that he did not have nor had ever had recurrent back pain. The Board has considered the Veteran’s assertions that his current cervical spine disability is related to his time in service. However, the Board finds that the Veteran, who lacks medical training, is not competent to give evidence of the medical significance of his symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran lacks the adequate medical expertise in this case to render a medical opinion as to the nature or cause of his diagnosed disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the complex question in this case– whether a current spine disability is due to an event occurring many years ago – medical expertise is necessary to render a competent opinion. As such, the Veteran’s assertions are not competent or probative evidence to determine whether the Veteran’s current disability is medically related to his time in service. The Board finds the February 2015 VA examination to be the most probative evidence of record concerning whether the Veteran’s cervical spine disability is related to his time in service. The examiner’s evaluation is logical, well-reasoned, thorough, and based on consideration of the Veteran’s VA claims file, service treatment records, and reported history. Thus, the Board is satisfied that the February 2015 VA examiner’s evaluation is competent, credible, persuasive, and probative for deciding this appeal. The preponderance of the evidence weighs against a grant of service connection for the Veteran’s cervical spine disability. Therefore, the claim of entitlement to service connection for a cervical spine disability must be denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 2. Deep Vein Thrombosis (DVT) The Veteran contends that he is entitled to service connection for deep vein thrombosis (DVT) of the lower extremities. The Veteran filed a claim of service connection for DVT in February 2014. At the Veteran’s February 2015 VA examination, the examiner diagnosed the Veteran with status post DVTs of the bilateral lower extremities, varicose veins with persistent edema of the right lower extremity secondary to recurrent DVTs, and varicose veins with intermittent edema of the left lower extremity secondary to recurrent DVTs. Thus, the Veteran meets the criteria for a current disability of DVT of the lower extremities, and he fulfills the first of the three requirements for service connection. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To qualify for service connection for DVT, the Veteran must next have in-service incurrence or aggravation of his DVT. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran asserts that he injured his leg on a paratrooping jump during his time in service and developed DVT as a result. However, his service treatment records (STRs) do not contain any complaints, diagnosis, or treatment of DVT during his time in service. At the Veteran’s separation examination in June 1986, the Veteran’s lower extremities were noted to be normal. The first mention of DVT on record is in a private medical examination at Duke Medicine Durham Medical Center in September 2006. At this examination, the examiner noted that an ultrasound and Doppler evaluation of the right lower extremity showed DVT in the femoral vein to the level of the popliteal vein. The examiner also described the Veteran’s DVT as having been “recently diagnosed.” The examiner opined that the right lower extremity DVT was probably related to a fracture the Veteran had experienced six or seven months earlier. Similarly, in another private medical examination in December 2013, the examiner said the Veteran was not diagnosed with DVT until February 2006 when he sustained a fracture of his right leg after falling off a truck. Several other private treatment records since 2006 also note diagnosis and treatment of DVT in each of the lower extremities. At the Veteran’s February 2015 VA examination, the examiner stated that it is very unlikely for a DVT to present years after an injury sustained between 1979 and 1986, but rather the Veteran’s DVT is most consistent with the leg fracture he sustained in 2006. Thus, the VA examiner determined that the Veteran’s claimed DVT condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Therefore, the requirements for the second element of service connection – an in-service incurrence or aggravation of a disease or injury – have not been met in relation to the Veteran’s DVT. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The preponderance of the evidence weighs against a grant of service connection for DVT. The Veteran’s opinion that his DVT is due to service is not competent evidence because of the complex nature of the nexus question in this case. Therefore, the Veteran’s claim of entitlement to service connection for deep vein thrombosis of the lower extremities must be denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b), 38 C.F.R. §§ 3.102, 4.3. 3. Post-traumatic Stress Disorder (PTSD) The Veteran contends that he is entitled to service connection for post-traumatic stress disorder (PTSD), also claimed as depression. The Veteran filed a claim of service connection for PTSD in September 2013. To establish entitlement to service connection for PTSD, in addition to the three basic elements of service connection discussed earlier, the record must contain the following: (1) medical evidence giving the Veteran a current diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). If the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran‘s service, the veteran‘s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). If the evidence establishes that the veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(4). If a PTSD claim is based on in-service personal assault, 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). Effective August 4, 2014, the VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to Diagnostic and Statistical Manual, 4th Edition (DSM-IV) and replacing those references with references to the recently updated DSM-V. Here, the Veteran submitted a claim of service connection for PTSD, also claimed as depression, in September 2013, and case was certified to the Board in January 2017. Therefore, the DSM-V applies. See 38 C.F.R. § 3.304(f)(2); Molitor v. Shulkin, 28 Vet. App. 397, 410-11 (2017). The preponderance of the evidence is against a finding that the Veteran’s claimed PTSD is related to his active service. In private psychiatric examinations at Goldsboro Psychiatric Clinic in August and September of 2013, the examiner diagnosed the Veteran with chronic PTSD and chronic major depression. The private examiner noted that the Veteran’s primary claimed stressor was his diagnosis of deep vein thrombosis (DVT), which the Veteran was told was life threatening. The Veteran told the private examiner that he had been injured from a paratrooping jump in service and that he developed DVT as a result. However, as discussed above, the preponderance of evidence is against granting service connection for the DVT disability. Thus, any claimed psychiatric disability based on the non-service-connected DVT cannot itself be service connected. See 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509, 512-514 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). At the Veteran’s August 2013 private medical examination, the Veteran also mentioned that he witnessed the deaths and injuries of others, some of whom were his close friends. He said he witnessed deaths at work as an anesthesia technician for Durham Medical Center for the 3 years prior to the private examination. However, any such incidents during his time recently working at Durham Medical Center were not related to his active service from 1979 to 1986. Additionally, the Veteran’s active service was not during a time of war. There is no evidence that the Veteran was ever a prisoner-of-war, and the Veteran has consistently stated that he did not engage in combat during service. There is also no evidence of any in-service personal assault that led to PTSD or other mental disorders. Furthermore, the Veteran’s service treatment records (STRs) do not contain any complaints, diagnosis, or treatment of PTSD or other mental disorders or symptoms during his time in service, and there is no objective evidence that the Veteran’s claimed PTSD or any other mental disorders were incurred in service. Thus, the Board finds the preponderance of the evidence is against a grant of service connection for PTSD. Therefore, the Veteran’s claim of entitlement to service connection for PTSD, also claimed as depression, must be denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. (Continued on the next page)   In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dawn A. Leung, Associate Counsel