Citation Nr: 1808926 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 12-09 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for shin splints. 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, including major depressive disorder (MDD). 3. Entitlement to service connection for an acquired psychiatric disorder, including a personality disorder. 4. Entitlement to service connection for chronic fatigue syndrome (CFS). 5. Entitlement to service connection for a headache disability (migraines) with sensitivity to light and noise. 6. Entitlement to service connection for a back disability, to include degenerative disc disease (DDD). 7. Entitlement to service connection for sciatica. REPRESENTATION Appellant represented by: Dale R. Smith, Claims Agent ATTORNEY FOR THE BOARD S. A. Abarr, Associate Counsel INTRODUCTION The Veteran had active service from February 1984 to February 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In December 2014, the Board remanded the issues for further development. In a January 2016 rating decision the RO awarded service connection for PTSD and fibromyalgia. The RO continued to deny the other issues that are the subject of this appeal. In October 2016, the Veteran filed a notice of disagreement (NOD) with the ratings assigned for her PTSD and fibromyalgia. The evidence of record suggests the RO is actively working on the NOD as VA examinations have been scheduled and conducted. Therefore, a remand for the issuance of a statement of the case (SOC) under Manlicon v. West, 12 Vet. App. 238 (1999), is not needed at this time. The issues of entitlement to service connection for CFS; a headache disability (migraines), with sensitivity to light and noise; a back disability, to include DDD; and sciatica are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. Shin splints have not been diagnosed at any time during the period on appeal. 2. The evidence is at least evenly balanced as to whether MDD is related to active duty service. 3. The Veteran's current personality disorder is a congenital or developmental defect. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for shin splints have not been met. 38 U.S.C. §§ 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.71a, Diagnostic Code (DC) 5262 (2017). 2. With reasonable doubt resolved in favor of the Veteran, MDD was incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. A personality disorder is not a disease or injury within the meaning of the law providing compensation. 38 C.F.R. §§ 3.303, 4.9 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Except as set forth in the Remand portion of the opinion, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board notes that in its December 2014 remand, the RO was directed to contact the Veteran and request that she identify all VA and non-VA health care providers that have treated her since service for the claimed disabilities and associate those treatment records with the claim file. VA medical center treatment records were subsequently added to the claim file. Also added were private treatment records, including from LifeSpring Mental Health Services, Dr. S., and Social Security Administration (SSA) medical records, which in turn contained records from Family Health Center of Floyd County, Floyd Memorial Hospital, Clark Memorial Hospital, and Dr. Jeanne M. Green. 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. § 1131 (2012); 38 C.F.R. § 3.303 (2017). "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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Shin Splints In her May 2008 written correspondence to VA, the Veteran reported that she "was first diagnosed with shin splints during Basic Training at Ft. Dix, NJ in approx. March or April 1984." Additionally, she stated, "I also had problems during AIT at Ft Sam Houston and was treated at the TMC." The Board acknowledges that the Veteran is competent to report her observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran is also competent to state that she was diagnosed with a particular disability. However, a review of the contemporaneous records does not show any complaints, symptoms, or diagnosis of shin splints. The Board places greater probative value on the contemporaneous records. Service treatment records are completely silent for diagnosis, complaints, or treatment of shin splints at any time during service. No such condition was noted at separation in her service treatment records. In a Report of Medical History dated November 1987, the Veteran stated, "I am in good health and am on no medications." Post-service VA Medical Center records and Social Security Administration records in the claim file also contain no evidence of a diagnosis of shin splints. At a May 2015 VA examination, the examiner stated that the Veteran does not now have or has not ever had "shin splints" (medial tibial stress syndrome). In sum, while the Veteran has argued she was diagnosed with shin splints, neither service treatment records nor post service treatment records confirm a diagnosis of shin splints. On the contrary, after examination of the Veteran, a VA examiner has stated there is no current or previous diagnosis of shin splints. As such, there is a fatal flaw in the Veteran's claim, the lack of a current disability. Without competent evidence of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). MDD At the outset, the Board notes that in its January 2016 rating decision, the RO granted service connection for the Veteran's PTSD. In that decision, the RO stated, "The [December 2014] BVA Remand also included a claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD to include major depressive disorder. The [May 2015 VA] examiner conducting the PTSD exam did not render an additional diagnosis for another psychiatric disorder; however, the symptom of depression is accounted for in the evaluation of the PTSD." The diagnostic criteria for MDD include the following symptoms: depressed mood, loss of interest or pleasure, significant weight or appetite changes, insomnia/ hypersomnia, psychomotor agitation/retardation, fatigue, feelings of worthlessness or guilt, concentration difficulties, and recurrent suicidal ideation. See The Diagnostic and Statistical Manual (5th ed.). Therefore, accounting for the "symptom of depression" in her rating for PTSD does not adequately take into account the full spectrum of symptoms the Veteran may experience as a result of MDD if it is found to be service-connected. Here, there is evidence of a current disability. The Veteran was first diagnosed with Dysthymic Disorder in November 1987, seven months after she was discharged from the military. She was treated on an outpatient basis for depression at various times between 1991 and 1999. She also obtained outpatient treatment at Life Spring Counseling Center in between 2000 and 2004. She was hospitalized at Clark Memorial Hospital in January 2010 for treatment of MDD. At the Veteran's January 2012 VA examination for PTSD, she was also diagnosed with MDD. Hence, the Board finds that MDD is a distinct and separate current disability from the Veteran's PTSD. Further, the January 2012 VA examiner stated that it was possible to differentiate what symptoms were attributable to each diagnosis. The examiner stated that the Veteran "manifests severe symptoms of depression. She reports feelings of sadness with loss of interest in normal activities and a loss of pleasure in things she enjoyed previously. She acknowledges being discouraged and withdrawn with feelings of worthlessness, hopelessness, and personal failure. She is likely to have problems with sleep disturbance, decreased appetite, loss of energy, and psychomotor slowing. She has difficulty concentrating and making decisions. She acknowledged passive thoughts of suicide but denied any plan or intent to harm herself." As to the in-service event, the Veteran reported that she was a victim of domestic violence by her first husband while she was serving in the military. She reported this to her First Sergeant and Commander but they were not supportive. The January 2012 VA examiner noted that the Veteran had a history of physical, emotional, and sexual abuse, and that her abuse history would also increase her vulnerability to depression. Thus, though there is an overlap in the underlying in-service event related to her MDD and PTSD, this does not render her ineligible for service connection for her separately-diagnosed MDD. In granting service connection for PTSD, the RO acknowledged her in-service stressor as the spousal abuse she experienced while on active duty. Because this same incident is also treated as a "sentinel event" (other than a stressor) by her January 2012 VA examiner in diagnosing her with MDD, the in-service event must be conceded for purposes of establishing entitlement to service connection for MDD. Regarding the existence of a nexus, the Board notes that no etiology opinion for her MDD was provided by the January 2012 VA examiner because it was specifically limited to making an initial assessment of service connection for PTSD. Likewise, in her May 2015 and January 2017 VA examinations, there are no etiology opinions for her MDD because those examinations were also limited to PTSD. Significantly, a medical opinion from her private doctor, dated July 20, 2016, confirms the Veteran's separate diagnoses of PTSD and MDD. The examiner sets forth the symptoms of her diagnoses and the specific incidents associated therewith. He concludes by stating, "[t]herefore it is more likely than not that [the Veteran] suffers from PTSD and MDD triggered by the trauma she experienced while stationed in Fort Carson, CO. These conditions resulted from service-connected traumas." The Board has no basis upon which to question the competency or credibility of this examiner. There is evidence of record which indicates a pattern of abuse, particularly during the Veteran's childhood. As noted in her treatment records and by her January 2012 VA examiner, the Veteran has a history of physical, emotional, and sexual abuse, not all of which occurred in-service. However, there is no notation in her enlistment exam from January 1984 of any psychiatric issues. The evidence is thus approximately evenly balanced as to whether the Veteran's MDD is related to her service. Accordingly, the Board finds that the evidence regarding her claim for MDD is in relative equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for MDD is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, affording the Veteran the benefit of the doubt, service connection for an acquired psychiatric disorder, diagnosed as MDD, is granted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Personality Disorder At her January 2012 VA examination for PTSD, the Veteran was also diagnosed with Personality Disorder Not Otherwise Specified (NOS). With regard to the Veteran's recognized diagnosis of a Personality Disorder NOS, there is no entitlement under the law to service-connect this disorder. By regulation, congenital or developmental defects such as personality disorders are not diseases or injuries for the purpose of service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2017); see Winn v. Brown, 8 Vet. App. 510, 516 (1996); see also 38 C.F.R. § 4.130 (2017); American Psychiatric Association, DSM-IV. A claim for service connection for a personality disorder must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Beno v. Principi, 3 Vet. App. 439 (1992). The statutory provisions regarding reasonable doubt are not applicable to a determination based on preclusion by law. Thus, service connection for an acquired psychiatric disorder, diagnosed as Personality Disorder NOS, is denied. ORDER 1. Service connection for shin splints is denied. 2. Service connection for an acquired psychiatric disorder, diagnosed as MDD, is granted. 3. Service connection for a personality disorder is denied. REMAND In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In the December 2014 Remand the Board requested that VA examinations and etiology opinions be obtained as to all the claimed disabilities. The Board finds that not all the etiology opinions requested were indeed obtained. Moreover, those that were obtained are not adequate. In this regard, the Board notes that the Veteran was afforded VA examinations in May 2015 for CFS, headaches, back conditions, and peripheral neuropathy. None of the May 2015 examination reports contain an etiology opinion. In December 2015, an addendum opinion was obtained. In it, the examiner noted a diagnosis of degenerative disc disease of the lumbar spine as well as sciatica and stated neither had been diagnosed within a year of service. The examiner also stated that the Veteran did not have a diagnosis of CFS as the Veteran stated she had never been diagnosed with the same. As to headaches, the examiner stated the Veteran had said these were related to her fibromyalgia. The examiner concluded by providing a blanket statement that none of the claimed disabilities had been diagnosed within a year from service. Upon review of the above, the Board finds that no adequate etiology opinion has been provided as to any of the claimed disabilities. Moreover, the addendum and VA examinations contain various inconsistencies. In regards to the headaches, the May 2015 examiner noted there was no diagnosis of a headache disability yet noted reported symptoms of headaches with associated sensitivity to light and sound. No explanation was provided as to why these types of headaches did not constitute a headache disability. Further, the examiner appears to have based the assessment of a lack of disability on the Veteran's report that her headaches are associated with her fibromyalgia. The Veteran does not have the expertise to provide a diagnosis. Similarly, the May 2015 VA examination notes a diagnosis of CFS in 2004 but then states that there is no diagnosed CFS as the Veteran stated she has never been formally diagnosed with the same. The Board finds the examination to be inconsistent. Moreover, as with the headaches, the Veteran is competent to report symptoms but not to provide a diagnosis of CFS or lack thereof. The purpose of the examination was for an expert in the field, the medical examiner, to determine if indeed the Veteran's symptoms amounted to CFS. The Board further notes that the RO did not properly readjudicate the issues of service connection for CFS and headaches. Indeed, these issues were not part of the January 2016 supplemental statement of the case (SSOC). While a February 2017 rating decision does address the issues of service connection for a back disability and headaches, the rating decision does not supplant the need to issue an SSOC. Further, the issues were readjudicated as requests to reopen previously denied claims despite the claims continuing to be on appeal. On remand, a proper SSOC as to all remaining issues should be issued. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should schedule the Veteran for appropriate examination(s) by an appropriate professional or professionals, different than the examiner who conducted the May 2015 VA examination and who provided the December 2015 addendum opinion, to determine the nature and etiology of CFS, headache disability (migraines) with sensitivity to light and noise, current back condition, to include DDD, and sciatica. The Veteran's entire claim file and a copy of this Remand should be made available to and reviewed by the examiner in conjunction with the opinion. All indicated studies should be conducted, and all findings reported in detail. The examiner should consider all lay statements. Specifically, the VA examiner or examiners are asked to confirm whether there is a separately diagnosed disability related to headaches and whether the Veteran has CFS. If separate diagnoses cannot be rendered, a reason for the same must be provided. For each diagnosed disability, provide an opinion on whether it is at least as likely as not (a 50 percent probability or greater) that any CFS, headache disability (migraines) with sensitivity to light and noise, back condition, to include DDD, and sciatica is etiologically related to the Veteran's active duty service. For any opinion given, the examiner must provide a complete rationale, based on examination findings, historical records, and medical principles, for all opinions expressed. If the examiner determines that the opinion sought cannot be given without resorting to speculation, (to satisfy legal requirements) the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the requisite knowledge or training). See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record). After completing the above actions, readjudicate the issues of service connection of CFS, a headache disability (migraines) with sensitivity to light and noise, a back condition, to include DDD, and sciatica. 2. The AOJ should issue a SSOC for any claims that remain denied on appeal (including those that were not addressed in the RO's original January 2016 SSOC - i.e. CFS and a headache disability (migraines) with sensitivity to light and noise - if they remain denied). 3. If upon completion of the above actions any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ E.I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs