Citation Nr: 18161103 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-05 444 DATE: December 28, 2018 ORDER Service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating in excess of 40 percent for degenerative arthritis of the spine, intervertebral disc syndrome, SP lumbar spine strain, PO L4-L5 hemilaminectomy (herein after referred to as back disability), is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial compensable rating for scar, residual of lumbar spine surgery, is remanded. FINDINGS OF FACT 1. The Veteran does not have PTSD that began during service, was aggravated by service, or is shown to have otherwise resulted from active duty service. 2. An acquired psychiatric disorder, other than PTSD was not shown in service, or linked by competent evidence to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD have not been met. 38 C.F.R. §§ 1131, 5103, 5103a, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1992 to October 1995, with additional service in the Army National Guard. To establish service connection, there must be 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted 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). In addition to the general service connection requirements for psychiatric disorders, service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304(f), 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, section 3.304(f) sets forth circumstances that are exceptions to this rule and allow a claimant’s lay testimony, alone, to establish the occurrence of the alleged stressor. In the first circumstance, 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 the 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). In the second circumstance, 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 the 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). In the third circumstance, if a stressor claimed by a veteran is related to her “fear of hostile military or terrorist activity” and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms the claimed stressor is adequate to support a diagnosis of PTSD and that 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, types, and circumstances 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)(3). For purposes of this relaxed evidentiary standard set forth in this subsection, “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. Id. In the fourth circumstance, if the evidence establishes the veteran was a prisoner-of-war (POW) under the provisions of section 3.1(y) of the regulations, and the claimed stressor is related to that POW experience, in the absence of clear and convincing evidence to the contrary, and provided the 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). Here, the Veteran does not claim and there is no evidence otherwise showing that she engaged in combat with the enemy or was a prisoner of war. See VAOPGCPREC 12-99 (Oct. 18, 1999) (65 Fed. Reg. 6,257 (2000)) (providing that in order to establish that a veteran “engaged in combat with the enemy,” it must be shown that the veteran “personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality”). She has also not identified a stressor related to fear of hostile military or terrorist activity. Cf. Acevedo v. Shinseki, 25 Vet App. 286, 291-93 (2012) (holding that the relaxed evidentiary burden for establishing an in-service stressor related to fear of hostile military or terrorist activity did not apply to a PTSD claim based on a personal assault perpetrated by another service member merely because the claimant alleged that the stressor was related to such fear). Finally, the Veteran’s service treatment records do not show diagnoses of PTSD or a related diagnosis such as anxiety disorder or “shell shock.” Accordingly, none of the above exceptions under section 3.304(f) apply. Therefore, the Veteran’s statements alone are not sufficient to establish an in-service stressor, but must be corroborated by credible supporting evidence. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); accord Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996); see also Cohen v. Brown, 10 Vet. App. at 146-47. The available evidentiary sources for corroboration of a claimed stressor are not limited to service records (as required prior to the adoption of 38 C.F.R. § 3.304(f)), but may also include other sources of evidence. See Cohen v. Brown, 10 Vet. App. at 143 (citing to M21-1, Part VI, para 7.46(f) (Sept. 21, 1992); M21-1, Subch. XII, para 50.45(d) (1989)). Indeed, VA considers a wide range of evidence in PTSD claims based on an alleged personal assault, as discussed in more detail below. See 38 C.F.R. § 3.304(f)(5). Corroboration of every detail of the stressor is not required. Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). Moreover, a veteran’s actual presence during the stressor event need not be specifically corroborated if the evidence shows that she was assigned to and stationed with a unit that was present when a reported event that has otherwise been verified occurred; such evidence strongly suggests actual exposure to the stressor event. Id. In general, “after-the-fact medical nexus evidence,” such as a VA examiner’s finding that a claimant’s PTSD was caused by the alleged in-service stressor, cannot by itself serve as credible supporting evidence of the claimed in-service stressor. See Moreau v. Brown, 9 Vet. App. at 396. However, there is an exception to this rule in service connection claims for PTSD based on an alleged personal assault. In such cases, the Court held that the “categorical statements” made in Moreau and Cohen that medical nexus evidence cannot by itself fulfill the requirement of “credible supporting evidence” does not apply. See Patton v. West, 12 Vet. App. 272, 279-280 (1999) (holding that in PTSD cases based on personal assault, a VA examiner’s finding that the claimant’s PTSD is etiologically linked to the alleged in-service stressor can serve as verification that the stressor occurred); VBA Training Letter No. 11-05 (Dec. 2, 2011); see also 38 C.F.R. § 3.304(f)(5) (providing that VA may submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred). In PTSD claims based on personal assault, alternative sources of information may be used to corroborate an in-service stressor because official service records may be devoid of evidence of the incident. Many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. See Patton v. West, 12 Vet. App. at 278. Thus, a broad range of evidence is considered to determine whether there are indications of the alleged in-service personal assault, which may be sufficient to support the occurrence of the assault notwithstanding the fact that more direct evidence is lacking. See VBA Training Letter No. 11-05. Specifically, under 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. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. In determining whether service connection is warranted for a disability, 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 of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran’s service treatment records are silent for any psychiatric complaints, symptoms, treatment, or diagnosis. She did not indicate any psychiatric conditions on her October 1995 service separation report. A National Guard service examination report from December 1998 also noted that she had no psychiatric conditions. Private treatment records from March 2005 diagnosed the Veteran with depression and she was prescribed medication to treat her symptoms. A VA treatment record from December 2008 included a positive PTSD screen. She was diagnosed in January 2009 with PTSD from a motor vehicle/train accident which occurred during her civilian employment in 2003. Private records also diagnosed PTSD in February 2009 without evidence of any clinical evaluation. May 2010 VA psychiatric treatment records noted that the Veteran’s PTSD stressors were from a fatal motor vehicle/train accident which she witnessed six years previously. Other VA treatment records contained additional psychiatric diagnoses including major depressive disorder, depression, childhood sexual trauma, military sexual trauma (MST), and bipolar disorder. VA and private treatment records documented continued treatment via therapy and medication management. The Veteran was requested to provide a stressor statement for her PTSD/MST claim. However, no statement has been submitted. She reported to her treating psychiatric clinicians that she was sexually harassed by three Army soldiers, noting that guys wanted to have sex with her to “make her straight.” However, no additional information is of record contending any specific in-service event, including time, place, or further description. Because there is insufficient information to support the occurrence of an in-service stressor, no evidence of psychiatric symptoms or complaints in service or directly thereafter, and a PTSD diagnosis unrelated to service (motor vehicle/train accident) of record, the preponderance of the evidence is against a finding that service connection for PTSD is warranted. Likewise, since no probative evidence links any other acquired psychiatric disorder to service, service connection for an acquired psychiatric disorder other than PTSD, is not warranted. REASONS FOR REMAND The Veteran last underwent a VA examination regarding her back disability, bilateral lower extremity radiculopathy, and back scar in May 2014. Since that time, VA medical records indicated her back pain, mobility, and radiculopathy symptoms may be worsening. Accordingly, a new VA examination is needed to assess the current extent and severity of her service-connected disabilities. Subsequent to the examination, the Court held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the final sentence of 38 C.F.R. 4.59 (2017) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia established additional requirements for examinations regarding musculoskeletal disabilities. Additionally, the Court has since stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. 4.59, a new examination is further indicated. Although the Veteran has not made specific complaints regarding her scar, as it is associated with the back disability, a new evaluation of its severity is in order, as well. Additionally, there is evidence in the claims file that the Veteran has also received treatment from non-VA providers. Upon remand, she should be afforded an opportunity to associate records of any relevant private treatment with her claim file. The matters are REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records, to include records since January 2017. 2. Contact the Veteran and ask that she identify the provider(s) of any and all evaluations and/or treatment she has received for the disorders on appeal, to include Black Hills Orthopedic and Spine Center, and provide authorizations for VA to obtain records of any such private treatment. Obtain for the record complete clinical records of all pertinent evaluations and/or treatment from the provider(s) identified. If any records sought are unavailable, the reason for their unavailability should be noted in the record. If a private provider does not respond to VA’s request for identified records, the Veteran should be notified and reminded that ultimately it is her responsibility to ensure that private treatment records are received. 3. After obtaining all outstanding records, schedule the Veteran for a new VA examination to determine the current nature and severity of her back disability, bilateral lower extremity radiculopathy, and back scar. The claims folder should be made available to and reviewed by the examiner. All indicated tests and studies should be performed, including range of motion studies in degrees, and the results reported. (a.) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b.) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for the thoracolumbar spine on both active and passive motion and in weight-bearing and nonweight-bearing. If the thoracolumbar spine cannot be tested on “weight-bearing,” then the examiner should specifically indicate that such testing cannot be done. (c.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. (d.) In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding her flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flare-ups expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. (e.) The examiner’s opinion should reflect consideration of the Veteran’s reports as to her history and symptomatology. (f.) All opinions provided should be fully explained. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Readjudicate the issues on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case and return to the Board, if otherwise in order. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel