Citation Nr: 1808500 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-33 897 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a thoracic and lumbar spine (back) disorder. 2. Entitlement to service connection for a cervical spine (neck) disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from January 1991 to March 1997. He served in Southwest Asia. This matter came before the Board of Veterans' Appeals (Board) on appeal from September 2008 and August 2012 decisions of the Winston-Salem, North Carolina, Regional Office (RO). In November 2012, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. In April 2013, the Board remanded the appeal for additional action. The Board notes that the Veteran has additional issues currently on appeal and is awaiting a Board hearing on those issues. A decision as to those issues will be rendered following the hearing and will not be addressed in this decision. The issues of entitlement to service connection for a neck disorder and a left knee disorder and entitlement to an initial rating in excess of 50 percent for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Post-operative lumbar spine injury residuals with degenerative arthritis originated during service. CONCLUSION OF LAW The criteria for service connection for post-operative lumbar spine injury residuals with degenerative arthritis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, arthritis will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C. § 1154(b) (2012). Service treatment records indicate that the Veteran was in a motor vehicle accident in July 1992 and had complaints of low back pain. An X-ray study completed at that time showed no fracture or arthritis and the Veteran was diagnosed with low back syndrome secondary to the motor vehicle accident. A January 2005 private treatment record states that the Veteran was seen for low back complaints and diagnosed with musculoskeletal low back pain. April 2006 private treatment records indicate that the Veteran injured his back while moving a tree. A magnetic resonance image (MRI) study indicated degenerative disc disease. He underwent a discectomy and laminectomy in May 2006. A December 2007 private treatment record states that the Veteran had "a long history of low back pain." In a January 2009 statement, the Veteran described two in-service motor vehicle accidents and wrote that his back pain has been on-going since then. A May 2009 VA treatment record states that the Veteran initially hurt his back while in service and that it subsequently "gave out" in 2006. An August 2012 VA treatment record states that the Veteran has had back problems since his in-service motor vehicle accidents. Additional private and VA treatment records dated since 2006 indicate on-going low back complaints and treatment. In October 2010, the Veteran was afforded a VA examination. He reported a second motor vehicle accident that occurred in August 1994 while he was stationed in Southwest Asia. He stated that he was on limited duty for one day and then returned to full duty. He reported mid-back pain approximately two times per year since service separation. The examiner opined that the Veteran's low back symptoms were in part caused by his in-service motor vehicle accidents. At his November 2012 Board hearing, the Veteran described his second motor vehicle accident. He stated that he was in combat in Southwest Asia and was training fellow servicemembers. One driver turned the wrong way and the Veteran was thrown from the vehicle. He was not able to move for part of a day. He was taken to a medical station in a tent where was told that he had a shock to his vertebrae. In April 2014, the Veteran was afforded another VA examination. The Veteran was diagnosed with degenerative arthritis of the spine. The examiner opined that the Veteran's back disorders were not caused by his first in-service motor vehicle accident because "the [in-service] back pain . . . was acute and self limiting" and there was "no evidence of chronicity of a back condition." She also indicated that she did not believe that the Veteran's in-service injury was of such severity as to predispose him to post-service degenerative changes or to an acute disc herniation. She did not provide an opinion as to whether the Veteran's second motor vehicle injures could have caused his current disorder and did not discuss his reports of back pain twice per year until his 2006 injury or the private and VA treatment records indicating a history of back complaints. Therefore, this opinion is of low probative value. The Veteran's first in-service motor vehicle accident is documented in his service treatment records. The second accident is presumed to have occurred as the Veteran has described it, despite the lack of documentation, due the occurrence of the event during combat in Southwest Asia. Records indicate and the Veteran has reported on-going back complaints since service. VA examiners have provided conflicting opinions as to whether the Veteran's back disorders began in service. The Board finds that the evidence is at least in equipoise as to whether the Veteran's in-service back injuries caused his current back disorders. In cases such as these, the benefit-of-the-doubt rule, codified at 38 U.S.C.A. § 5107 provides that VA shall consider all information and lay and medical evidence, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. The implementing regulation at 38 C.F.R. § 3.102 restates the provision in terms of "reasonable doubt." Evidence is in "approximate balance" when the evidence in favor or and opposing the veteran's claim is found to be almost exactly or nearly equal. The statutory benefit of the doubt rule applies when the factfinder determines that the positive and negative evidence relating to a veteran's claim are "nearly equal," thus rendering any determination on the merits "too close to call." Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Because the evidence in this case is at least in equipoise with regard to the cause of the Veteran's current lumbar spine disability, service connection is warranted and the claim is granted. ORDER Service connection for post-operative lumbar spine injury residuals with degenerative arthritis is granted. REMAND The Board has determined that additional development is necessary and the appeal is, therefore, REMANDED as directed below. 1. Reasons for the Remand: In April 2013, the Veteran submitted a notice of disagreement (NOD) with the initial rating assigned for PTSD. A statement of the case (SOC) addressing the Veteran's April 2013 NOD has not been issued to him. The United States Court of Appeals for Veterans' Claims (Court) has directed that where a veteran has submitted a timely NOD with an adverse decision and the AOJ has not subsequently issued an SOC addressing the issue, the Board should remand the issue to the AOJ for preparation of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The record indicates that the Veteran applied for Social Security benefits. The evidence considered by the Social Security Administration (SSA) is not of record. VA's duty to assist the Veteran includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181, 187-188 (1992). Remand is also necessary to obtain new VA medical opinions. 2. Issue an SOC to the Veteran and his accredited representative which addresses the issue of an initial rating in excess of 50 percent for PTSD. The Veteran should be given the appropriate opportunity to respond to the SOC. 3. Contact the SSA and request that it provide documentation of the Veteran's award of disability benefits and copies of all records developed in association with the decision for incorporation into the record. 4. Return the file to the VA examiner who conducted the April 2014 left knee and neck examinations. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for VA examinations to obtain an opinion as to the nature and etiology of his disorders. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: a. whether a cervical spine disorder originated during service or was caused by any in-service injury disease, disorder, or event. b. whether cervical spine arthritis manifested to a compensable degree within one year of service separation. c. whether a cervical spine disorder was caused by any of the Veteran's service-connected disorders. d. whether a cervical spine disorder was aggravated by any of the Veteran's service-connected disorders. e. whether the Veteran's cervical spine complaints are the result of an undiagnosed illness causing joint or muscle pain or the result of a medically unexplained chronic multisymptom illness, such as fibromyalgia. f. whether a left knee disorder originated during service or was caused by any in-service injury disease, disorder, or event. g. whether left knee arthritis manifested to a compensable degree within one year of service separation. h. whether a left knee disorder was caused by any of the Veteran's service-connected disorders. i. whether a left knee disorder was aggravated by any of the Veteran's service-connected disorders. j. whether the Veteran's left knee complaints are the result of an undiagnosed illness causing joint or muscle pain or the result of a medically unexplained chronic multisymptom illness, such as fibromyalgia. Service connection is in effect for PTSD, tinnitus, residuals of a nasal fracture (deviated septum), and post-operative lumbar spine injury residuals with degenerative arthritis. IN ADDITION TO ANY EVIDENCE ADDED TO THE FILE AS A RESULT OF THE ABOVE-DIRECTED DEVELOPMENT, the examiner's attention is drawn to the following: *Service treatment records: --undated record stating that the Veteran was in a motor vehicle accident, reported paracervical neck pain, and was diagnosed with paracervical/neck strain. VBMS Entry 10/10/2014, p. 19. --April 1991 record stating that the Veteran was treated for knee complaints. VBMS Entry 10/10/2014, p. 101. --April 1991 record indicating that the Veteran had a swollen knee. VBMS Entry 10/10/2014, 104. --July 1992 record stating that the Veteran was in a motor vehicle accident 4 days prior and had complaints of neck pain. VBMS Entry 10/10/2014, p. 39. --November 1993 record stating that the Veteran was hit in the head by a dresser and had tightness at the base of his neck. VBMS Entry 10/10/2014, p. 115. *April 2005 private treatment record indicating the Veteran had knee arthralgia. VBMS Entry 8/16/2007, p. 3. *January 2009 VA treatment record indicating that the Veteran had neck pain and popping. VBMS Entry 11/28/2012, p. 156. *January 2009 statement from the Veteran where he reported ongoing neck pain since his motor vehicle accident in 1992. *May 2009 VA treatment record indicating that the Veteran's joints hurt and that both his knees popped. VBMS Entry 11/28/2012, p. 80. *October 2010 cervical spine VA examination where the Veteran reported a second motor vehicle accident that happened while he was stationed in Southwest Asia. The examiner diagnosed him with chronic mild cervical neck strain with normal range of motion. A January 2009 cervical spine imaging study report indicated that the Veteran had a history of a right-sided headache with "neck popping" and that imaging indicated he had a normal cervical spine. *June 2011 VA treatment record indicating left knee pain. VBMS Entry 11/28/2012, p. 43. *November 2012 Board hearing testimony where the Veteran described his in-service injuries to his left knee and neck. *April 2013 VA treatment record stating that the Veteran had right side periorbital pain that radiated to his neck and that it had been going on for several years. VBMS Entry 10/23/2013, p. 247. *May 2013 VA treatment record where the Veteran reported a torn meniscus in his left knee but an X-ray study was normal. VBMS Entry 8/12/2013, p. 62. *July 2013 VA treatment record indicating that the Veteran had left knee pain, swelling, and redness, and where he reported that he injured his knee while in service in 1994-1995. VBMS Entry 8/12/2013, p. 15. *April 2014 VA examination stating that the Veteran had a normal left knee and a normal cervical spine, but had a history of an acute cervical strain in 1992. 5. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs