Citation Nr: 18161127 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-59 584 DATE: December 28, 2018 ORDER Entitlement to service connection for a neck condition, to include cervical spinal surgery with radiculopathy, is denied. Entitlement to service connection for a low back condition, to include lumbar spinal surgery with radiculopathy and pelvic tilt, is denied. REMANDED Entitlement to service connection for a right shoulder condition is remanded. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD), with secondary depressive disorder, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran’s neck condition, to include cervical spinal surgery with radiculopathy, is related to the Veteran’s active service or manifested to a compensable degree within a year of his discharge from such service. 2. The preponderance of the evidence of record is against a finding that the Veteran’s low back condition, to include lumbar spinal surgery with radiculopathy and pelvic tilt, is related to the Veteran’s active service or manifested to a compensable degree within a year of his discharge from such service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neck condition, to include cervical spinal surgery with radiculopathy, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a low back condition, to include lumbar spinal surgery with radiculopathy and pelvic tilt, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1967 to November 1972. The Veteran was scheduled to appear for a hearing with a Veterans Law Judge in January 2017, which he failed to attend. Subsequently, the Veteran was provided with another scheduled hearing in October 2017, which he also failed to attend. The Veteran has provided no explanation for his failure to report and has not since requested that the hearing be rescheduled. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d). Service Connection 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In some cases, a grant of service connection is available on a presumptive basis. Service connection may be presumed for certain chronic conditions, such as arthritis, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a degree of at least 10 percent within one year of the date of discharge from service. 38 U.S.C. §§ 1101, 1112(a), 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for a neck condition, to include cervical spinal surgery with radiculopathy 2. Entitlement to service connection for a low back condition, to include lumbar spinal surgery with radiculopathy and pelvic tilt The record shows that the Veteran suffers from degenerative disc disease of the lumbar spine (low back) and cervical spine (neck). The Veteran contends these conditions are related to in-service treatment for back pain. The Veteran’s service treatment records show treatment for upper back pain in August 1971 caused by heavy lifting. However, a separation examination in November 1972 revealed normal clinical findings, and the Veteran reported that he was in good health. The post-service record does not show clinical evidence of low back pain until a low back injury at work in May 1986. In December 1993, a private physician found the Veteran was unable to work due to pain caused by degenerative disc disease. A May 1994 VA examination diagnosed the Veteran with degenerative disc disease and degenerative joint disease involving the cervical and lumbar spine with subsequent decrease of muscle strength in the left upper extremity. The examiner noted a history of low back problems which began while laying bricks in “196”, which is likely a typo, and may refer to the 1986 back injury. See May 1994 VA examination, page 3. The examiner also noted a history of neck problems beginning in 1992. The examiner did not provide any opinion regarding the etiology of the Veteran’s neck and low back conditions. In October 2016, the Veteran was provided with a VA examination to determine the nature and etiology of any back condition. The examiner reviewed the Veteran’s medical record, and noted treatment for a low back injury in May 1986 and a subsequent history of multiple back surgeries. The examiner diagnosed the Veteran with lumbar spondylosis with superior endplate compression fracture of L1, L2, and L5 and a history of L5 hemilaminectomy/discectomy in 1986. The examiner opined that this condition was not caused by service, or by any service-connected condition. The examiner noted that back pain was not present at the 1972 separation examination, and therefore the 1971 complains of back pain must have been resolved. The examiner found no medical literature to support a nexus between the in-service treatment for back pain and the Veteran’s current back condition. The examiner noted that the back surgery performed in 1986 was due to a masonry-related incident after service, as documented in medical records. The examiner also found that end plate compression was not found in a 2014 MRI, so that condition must have been incurred after 2014. The examiner reviewed the Veteran’s claims file, the examination, and the results of testing in arriving at this conclusion. The examiner considered all pertinent and available medical facts to which the Veteran is entitled in forming his opinion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Therefore, the Board places high probative weight on this opinion. The Board notes that in a January 1994 application for pension, the Veteran reported to the VA that his low back condition, cervical spine condition, and loss of strength and movement of the left arm began in 1986. The Board notes such statements are consistent with the medical record, but inconsistent with a finding that his current conditions are related to service, which ended well before 1986. The Board acknowledges the Veteran’s current contention that his neck and low back condition is related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). No other evidence or valid test results in the record show that an etiological relationship exists between the Veteran’s neck and low back condition and any in-service injury. Thus, remanding for another opinion on that issue would not aid the claimant in obtaining evidence to substantiate his claim or to place that theory of entitlement “within the range of possibility as distinguished from pure speculation or remote possibility.” Mariano v. Principi, 17 Vet. App. 305, 312 (203); 38 U.S.C. § 5103A(a)(2); 38 C.F.R. § 3.102. The Board also considered whether a grant of service connection is available on a presumptive basis. Here, the Veteran is competent to report low back and neck pain since service. However, there is no medical evidence that the Veteran had low back pain, neck pain, or radiculopathy within a year of his discharge from service. The Veteran was discharged from active service in November 1972, and there is no record of back or neck pain until 1986. In sum, the competent evidence of record weighs against the Veteran’s assertion that his low back and neck conditions are etiologically related to his active service. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claims for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder condition is remanded. The Veteran’s medical record shows a history of treatment for arthritic changes of the right shoulder acromioclavicular joint. The Veteran contends this condition is related to service. The Board cannot make a fully-informed decision on the issue of service connection for a right shoulder condition because no VA examiner has opined whether this condition is related to service. 2. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with secondary depressive disorder is remanded. The Veteran was last provided with a VA examination related to his PTSD in May 2014, over four years ago. Since that VA examination, VA medical records show on-going treatment for worsening mental health symptoms, including worsening depression. Thus, due to evidence of worsening symptomatology, the Board finds that an updated VA examination is necessary. The Board acknowledges that the Veteran is currently incarcerated. VA has special procedures for handling the scheduling of VA examinations for incarcerated Veterans. The duty to assist incarcerated Veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement; as such, individuals are entitled to the same care and consideration given to their fellow non-incarcerated Veterans. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him or her with the necessary examination at the closest VA medical facility. See 38 U.S.C. § 5711. Nevertheless, VA’s duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). Existing VBA guidance documents call for the RO or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether a Veteran should be escorted to a VA medical facility for examination by VHA personnel. If that is not possible, the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. Additionally, compensation clinics must document that they have made multiple attempts and exhausted all possible avenues for obtaining access to the incarcerated Veteran for the examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA PTSD and shoulder examinations in accordance with the procedures outlined above and found in 38 U.S.C. § 5711; Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Bolton v. Brown, 8 Vet. App. 185, 191 (1995). If the RO is unable to afford the Veteran an examination due to his incarceration, document in detail all of the steps taken in attempting to do so and arrange for a medical opinion by an appropriate VA examiner. (a.) Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD alone. (b.) Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right shoulder disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must also opine as to whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel