Citation Nr: 1808592 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-22 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a low back disorder, to include as secondary to the service-connected right hip strain disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Berry, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This case was previously before the Board in September 2013, February 2016, and May 2017 where the Board remanded the issues on appeal for additional development. The requested actions have been completed and a remand to comply with the prior Board directives is not required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The competent, probative evidence of record fails to link a diagnosis of PTSD to service. 2. The competent, probative evidence of record fails to relate a low back disability to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Board notes that the Veteran is not entitled to presumptive service connection for his disability, is not considered a chronic disease for purposes of 38 C.F.R. § 3.303 (b). See C.F.R. § 3.309(a) (2017). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal as the preponderance of the evidence weighs against a finding of a relationship between the Veteran's low back disability and any service-connected disability. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). PTSD The Veteran contends that the claimed PTSD is due to harassment by an ex-husband during service. The Veteran has also indicated that the claimed PTSD is due to military sexual trauma (MST). A January 2008 statement reflects the Veteran wrote that she was constantly harassed during service. A June 2008 statement reflects that the Veteran indicated that she was abused by her first husband. A September 2008 statement reflects that the Veteran wrote that she had been diagnosed with PTSD as due to MST. In addition to the general laws and regulations governing service connection claims, establishing service connection for PTSD, in particular, requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (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). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A "clear" diagnosis of PTSD is not required. Rather, as mentioned, a diagnosis of PTSD need only be in accordance with 38 C.F.R. § 4.125(a). Here, there is some question as to whether the Veteran has a current diagnosis of PTSD. The June 2008 and April 2016 VA examiners both failed to provide a diagnosis of PTSD and, instead, attributed her psychiatric symptoms to generalized anxiety disorder, for which service connection has been established. Similarly, the Veteran's extensive VA treatment records are silent as to a diagnosis of PTSD. However, a July 2008 letter reflects that a VA clinical therapist wrote that the Veteran "shared her MST/PTSD" diagnosis and an October 2008 letter reflects that the same VA clinical therapist wrote that the Veteran "suffers from PTSD/MST." The "current disability" requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet.App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to . . . filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet.App. 289, 294 (2013). Given that the Veteran had a diagnosis of PTSD when she filed her claim, she has satisfied the first element of service connection. Therefore, as discussed below, the merits of this claim turn on whether the Veteran's PTSD may be attributable to her military service. The Court also held that a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen, 10 Vet. App. at 142. That is, generally speaking, a stressor cannot be established as having occurred merely by after-the-fact medical nexus evidence. See also Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). This is not a hard-and-fast rule, however, and exceptions are made for certain types of claims depending on the type of particular stressor alleged, and this is reflected in several subparts of 38 C.F.R. § 3.304, (f)(1) through (f)(5). Most notably, as it pertains to this specific claim at hand, the Court has clarified that the general rule discussed in Moreau that after-the-fact medical nexus evidence cannot establish the occurrence of the claimed in-service stressor does not apply to claims for PTSD based on personal or sexual assault. See YR v. West, 11 Vet. App. 393, 399 (1998); and Patton v. West, 12 Vet. App. 272, 279-280 (1999). That is, in this other type of claim, an opinion by a medical professional based on a post-service examination may be used to establish the occurrence of a stressor. 38 C.F.R. § 3.304(f)(5). Furthermore, the occurrence of the claimed stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102. Because personal assault is an extremely personal and sensitive issue, many incidents are not officially reported, which creates a proof problem with respect to the occurrence of the claimed stressor. In such situations it is not unusual for there to be an absence of service records documenting the events the Veteran has alleged. Therefore, evidence from sources other than the Veteran's service records may corroborate an account of a stressor incident. Patton, 12 Vet. App. at 277. Subsection § 3.304(f)(5) of Title 38 of the Code of Federal Regulations, expressly provides that, if a PTSD claim is based on in-service personal or sexual 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. Id. VA will not deny a PTSD claim that is based on in-service personal or sexual assault without first advising the claimant that evidence from sources other than the claimant's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal or sexual assault occurred. Id. And as the Court reiterated in Bradford v. Nicholson, 20 Vet App 200 (2006), § 3.304(f)(5) provides "unequivocally" that "VA will not deny a [PTSD] claim that is based on in-service personal assault" without first providing the requisite notice, which has been provided in this case. As to the matter of etiology of the Veteran's PTSD, the Board notes that VA has attempted on multiple occasions to schedule the Veteran for a VA examination to obtain an opinion as to whether her diagnosed PTSD may be attributable to her military service. Specifically, in September 2013, the Board remanded the appeal for a new VA examination to determine whether the Veteran has a current diagnosis of PTSD based on lay statements she submitted, as well as July 2008 and October 2008 letters from the VA clinical therapist that referred to a diagnosis of PTSD. The record reflects that the AOJ requested an examination in November 2013, but they were subsequently cancelled that same month for an unspecified reason that appears to be related to the Veteran's employment with the VA medical center where the VA examinations were scheduled to take place. The requested VA examinations were rescheduled at a different VA medical center for January 2014. The record reflects that the Veteran failed to report for the January 2014 VA examinations. After the claims were denied in a February 2014 supplemental statement of the case, VA received a letter from the Veteran indicating that she requested the cancellation of the November 2013 VA examinations, but was not notified about the rescheduled VA examinations in January 2014. A VA examination for mental disorders was scheduled for November 2014; however, the record reflects that the Veteran also failed to report for the November 2014 VA examination. In a January 2016 letter, the Veteran's representative asserted that, similar to the January 2014 VA examinations, she was not notified about the November 2014 VA examination. In February 2016, the Board determined the Veteran had shown good cause for her failure to report to the scheduled examinations and again remanded the claim to the AOJ for a VA examination. The Veteran did report to the scheduled April 2016 examination, discussed below. In May 2017, the Board again remanded this claim for additional development, to include a new VA examination as it was determined the April 2016 examination was inadequate because the examiner failed to address the July 2008 and October 2008 letters. The examination was scheduled for August 2017, and the Veteran failed to report despite repeated calls in attempts to reach her. To date, there has been no explanation as to why she failed to report to her examination. Individuals for whom examinations have been authorized and scheduled in conjunction with VA compensation claims are required to report for such examinations. 38 C.F.R. § 3.326 (a) (2017); see also Dusek v. Derwinski, 2 Vet. App. 519 (1992). When a claimant fails to report to a VA examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be decided based on the evidence of record. 38 C.F.R. § 3.655 (b) (2017). Due to the Veteran's failure to report to the August 2017 VA examination and in compliance with 38 C.F.R. §3.655 (b), the only evidence of record includes service personnel and treatment records, statements submitted by the Veteran, two letters from a clinical therapist, VA treatment records dated through 2017, and VA examinations dated from June 2008 and April 2016. The Veteran's service treatment and service personnel records are silent as to any instances of harassment or treatment for any injuries/ complaints that may have resulted from harassment. There is also no report of behavioral changes in the Veteran during service, and due, in part, to a failure of the Veteran to report for an examination, no doctor has specifically determined such upon review of the Veteran's service treatment or personnel record. In fact, as to be explained further below, in her June 2008 and April 2016 VA examinations, while the Veteran expressed behavior changes to the examiners, neither examier diagnosed her with PTSD. Following her separation from service, the Veteran received mental health treatment from VA. Her VA treatment records dating to 2017 show treatment for generalized anxiety disorder and depressive disorder, but there is no record the Veteran was treated for PTSD. The July 2008 and October 2008 letters from the VA clinical therapist only note a diagnosis of and monthly sessions for treatment of PTSD, but do not provide an opinion attributing the claimed disorder to the Veteran's military service supported by any rationale. The initial June 2008 VA examination notes the Veteran reported that as a result of her transfer to North Carolina during service, she suffered from harassment, belittling, and mental strain by her superiors, which manifested in low self-esteem and low self-confidence. However, a diagnosis of PTSD was not provided and, consequently, no etiological opinion was given as to this disorder. The April 2016 VA examination also reflects that the Veteran reported being harassed during service. As to this matter, the April 2016 VA examiner specifically opined that a diagnosis of PTSD was not warranted and reasoned that, while the Veteran reported exposure to harassment during service, she did not endorse symptoms consistent with a PTSD diagnosis. Based on the findings of the available evidence of record, there is no medical evidence of a nexus (i.e., link) between the Veteran's PTSD and her military service, such that service connection may be established. In fact, the only evidence in support of her claim is the Veteran's belief that she has suffered from PTSD since service. Her lay contention regarding the etiology of her PTSD is outweighed by the medical evidence of record and, specifically, the VA examiners who reviewed the medical records, performed clinical examinations, and provided a cogent rationale in support of their assessments based on expertise acquired through education, training, and experience. Cf. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Low Back The Veteran is seeking service connection for a back disorder. She is claiming that it is due to her service-connected right hip disorder. The Veteran's service treatment records are completely silent regarding any complaint, treatment, or diagnosis of a low back disability during her military service. Post-service VA treatments records reflect the Veteran's complaints of low back pain throughout the pendency of the appeal. However, no opinion was promulgated in the VA treatment records regarding the etiology of the Veteran's low back disability, to include whether it is due to or aggravated by the service- connected right hip disability. The Veteran was initially scheduled for a VA examination in October 2007. At that time, the VA examiner determined there were degenerative changes in the lumbar spine. As to the matter of etiology, the examiner was asked to only provide an opinion as to whether the back disability is secondary to the service-connected right hip disability. The examiner determined that it is less likely than not the back disorder is due to or caused by the right hip disability because there is no evidence of residual injury to the hip or pelvis. The examiner stated that while the original complaints clearly referred to the anterior structures of the pelvis, the current complaints are localized to the posterior structures of the low back and buttock. Thereafter, the Veteran reported for another VA examination in April 2016. The examiner noted the Veteran's inability to recall symptoms of back pain during service, and that her symptoms began in approximately 1996, six years post-service. At the conclusion of the examination, the April 2016 VA examiner opined that the back disorder was unrelated to service. The April 2016 VA examiner reasoned that review of the service treatment records show no complaints of back pain, to include no treatment for or any diagnosis of back disorder. The April 2016 VA examiner also reasoned that symptoms of a back disorder were first treated in 2002, 12 years post-service. As to secondary service connection, the April 2016 VA examiner opined that the back disorder was unrelated to the service-connected right hip. As rationale for this opinion, the examiner indicated that the back disorder was related to the aging process. The examiner also wrote that "[s]ince there is no secondary service connection, there is no aggravation of her back condition." No further rationale or explanation on the matter of aggravation was provided. In May 2017, the Board remanded this matter for an addendum opinion as to the matter of whether the service-connected right hip disability may have aggravated the low back disability. In July 2017, the requested addendum opinion was obtained. The reviewing physician determined that the low back disability is less likely than not proximately due to or the result of the Veteran's service- connected right hip disability. As rationale for this finding, it was noted that there are no studies that support the concept that a hip strain would cause low back degenerative disc disease as these are separate anatomic and physiologic entities. There is also no documentation of chronic altered gait that could generate the force necessary to cause degenerative disc changes in the Veteran's back. Further, there is no indication that the right hip disability aggravated the low back disability because a review of the records do not show a permanent increase in severity of her back condition, and there is no documentation relating one condition to the other. The examiner also noted there have not been continuous complaints of low back pain in the Veteran's records since 2008. The examiner ultimately concluded that it was more likely the Veteran developed mild/early low back disc degeneration secondary to the natural progress of the condition with aging and wear and tear over time. Based on the findings as noted in the VA examinations and opinions above, the Board finds that service connection pursuant to any theory of entitlement is not warranted. In fact, the only evidence offered in support of her claim that her back disability is due to or aggravated by her right hip disability, are the Veteran's own statements. To this extent, the Board notes that she is competent to describe the symptoms associated with her disability, such as pain, which is readily observable by laypersons. Indeed, she has done so during her examinations and treatment for her back pain throughout the course of her appeal. However, as a lay person, the Veteran has not shown that she has specialized training sufficient to render such an opinion as to the etiology of her pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of orthopedic disorders, such as is the case here, requires medical testing to diagnose and medical expertise to determine the etiology. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's opinion regarding the etiology of her degenerative disc disease of the lumbar spine is not competent medical evidence. The Board finds the opinions of the VA examiners to be significantly more probative than the Veteran's lay assertions. 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) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for a low back disability is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs