Citation Nr: 20003603 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 13-26 090 DATE: January 16, 2020 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for a lumbar spine disability is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for prostate cancer is remanded. Entitlement to service connection for a right lower extremity disability is remanded. Entitlement to service connection for a left lower extremity disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had PTSD at any time during or approximate to the pendency of the claim. 2. The Veteran’s lumbar spine disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an award of service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1976 to April 1983. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia denying service connection for cold weather injury-back, a September 2014 rating decision that denied service connection for PTSD, a July 2015 rating decision that denied service connection for peripheral neuropathy of the right and left lower extremities, and a November 2018 rating decision that denied compensation benefits under 38 U.S.C. § 1151 for prostate cancer. This case was previously before the Board in February 2016 and January 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is already service-connected for an acquired psychiatric disability. Under the circumstances, the Board finds that the Veteran’s PTSD claim should not be expanded. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection The Veteran seeks to establish service connection for PTSD and a lumbar disability as due to active service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order 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). For chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, an alternative to the nexus requirement exists: A Veteran may demonstrate a relationship to service through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303. Under the continuity of symptoms provision, “symptoms, not treatment, are the essence of any evidence of continuity of symptom[s].” Savage v. Gober, 10 Vet. App. 488, 496 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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, 1 Vet. App. 49 (1990). 1. PTSD The Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for PTSD. In this regard, the Board finds that the preponderance of the evidence is against finding that the Veteran has a current diagnosis of PTSD. In April 2019, a VA examiner opined that the Veteran did not have a diagnosis of PTSD as the Veteran did not meet DSM-IV or DSM-V criteria. It was reasoned that the Veteran had long presented with symptoms related to depression and especially major depressive disorder (MDD). The examiner noted that numerous VA psychiatrists and psychologists examined and treated the Veteran over the years; however, only one used the PTSD diagnosis for him. The Veteran’s own private examiner had given the Veteran a diagnosis of MDD. The VA examiner found that the preponderance of the evidence demonstrates that the Veteran does not meet the criteria for PTSD. In this regard, the examiner noted that, while criteria A, B, and E for a diagnosis of PTSD were met, criteria C and D were not met. The Board notes that the Veteran is already service-connected for an acquired mental disability, MDD. See May 2019 rating decision. While an October 2014 VA treatment record noted a “primary diagnosis” of PTSD, the same treatment record shows that the only Axis I diagnosis pursuant to the DSM-IV was MDD. Similarly, while a September 2016 VA treatment record by the same October 2014 VA clinician noted a “primary diagnosis” of PTSD, the VA clinician did not provide an Axis I diagnosis of PTSD pursuant to the DSM-IV or DSM-V. Based on the foregoing, the Board accords more probative weight to the April 2019 VA examiner’s opinion that the Veteran has not been diagnosed with PTSD because it is adequately based on objective findings as shown by the record, including the Veteran’s history, and provided a rationale for the opinion given. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the April 2019 VA opinion provides competent, credible, and probative evidence that supports the finding that the Veteran does not have a current diagnosis of PTSD. While the Veteran believes that he has a current diagnosis of PTSD, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge regarding the unseen and complex processes of the development of a psychiatric disability, which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). Consequently, the Board gives more probative weight to the competent medical evidence Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. at 225. As such, the Board finds that the evidence weighs against a finding of a current disability, and service connection for the claimed PTSD must therefore be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. This decision is not prejudicial to the Veteran because the Veteran has already been granted service connected for an acquired psychiatric disorder other than PTSD, and all his psychiatric symptoms are already rated pursuant to the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130 (providing that all psychiatric symptoms and social and occupational impairment are to be rated together under the General Rating Formula for Mental Disorders). Therefore, a grant of service connection for PTSD would not result in additional compensation for the Veteran because it would not result in a separate rating for PTSD symptoms and impairment alone because all service-connected psychiatric symptoms must be rated together under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. See 38 C.F.R. § 4.14 (pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disability). 2. Lumbar spine Disability The Board finds that service connection for a lumbar disability is not warranted. With respect to a current disability, the Veteran has a current diagnosis of degenerative disc disease (DDD) of the lumbar spine. See April 2019 VA Examination. Thus, the first element of service connection is met. See Davidson, supra. With respect to an in-service injury, the Veteran attributes his current conditions to an injury sustained in service. In service, he served in Korea from May 1979 to April 1980. See August 2014 Military Personnel Record. The Veteran claims he has a back disability due to sleeping on the cold ground in Korea. See December 2011 Statement. The Board finds the Veteran credible as to in-service injury. Because an in-service injury is established, the second element of service connection has been met. See id. With respect to nexus, however, the Board finds that the probative evidence of record does not support a link between the Veteran’s current lumbar spine disability and service. The Veteran himself reported at the time of his separation that he did not have, nor had he ever had, swollen or painful joints; arthritis; bone, joint, or other deformity; lameness; or recurrent back pain. Furthermore, his March 1983 separation examination reflects that his spine was found to be normal. This evidence weighs against finding that symptoms of the lumbar spine disability were chronic in service. While not dispositive, the Veteran was first seen for lower back pain in 2002, almost 20 years after his service ended. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). This evidence weighs against finding that symptoms of the lumbar spine disability have been continuous since service separation. An April 2019 VA examiner provided a negative nexus opinion. The examiner reasoned that the medical evidence of record is devoid of any chronic, on-going disability related to his lower back condition, either at the time of service separation or within the first year or two after service separation. The Board finds that the April 2019 VA opinion is highly probative with respect to service connection for a lumbar spine disability because it is adequately based on objective findings as shown by the record, including the Veteran's history, and provided a rationale for the opinion given. See Reonal, 5 Vet. App. at 461. Therefore, the Board finds that the April 2019 VA opinion provides competent, credible, and probative evidence that supports the finding that the currently-diagnosed lumbar spine disability is not related to service. The Veteran has not otherwise submitted any medical evidence that his lumbar spine disability may be related to service other than her general assertions that his current lumbar spine disability is related to service. Although lay persons are competent to report back symptoms experienced at any time, as well as provide opinions on some medical issues, the specific disability in this case, degenerative arthritis of the spine, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau, 492 F.3d 1372 . Thus, the Veteran statements purporting to link the current lumbar spine disability to service are assigned no probative value. Finally, as the Veteran’s lumbar spine arthritis has not been shown to have manifested within one year of service separation, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) are not applicable in this case. For these reasons, the Board finds that a preponderance of the evidence is against a finding that the Veteran’s lumbar spine disability was incurred in service, is otherwise related to service, or manifested within one year of service separation. Accordingly, service connection for a lumbar spine disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claims and to afford him every possible consideration. 1. Entitlement to compensation benefits under 38 U.S.C. § 1151 for prostate cancer is remanded. The Board finds that a new opinion is warranted. In October 2018 a VA examiner provided a negative opinion. The examiner reasoned that the Veteran’s diagnosis and treatment for his prostate cancer demonstrated no evidence of a failure on VA personnel to follow the appropriate standard of case. The examiner did not opine as to whether the Veteran suffered additional disability as a result of VA treatment, and, if so, whether the proximate cause of any such disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or an event which was not reasonably foreseeable. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. As such, a new opinion is warranted. 2. Service connection for a right lower extremity disability is remanded. 3. Service connection for a left lower extremity disability is remanded. In April 2019, the Veteran was examined and diagnosed with bilateral lower extremity radiculopathy; however, no etiological opinions were provided. Therefore, a remand is warranted in order to obtain a VA opinion regarding etiology of the Veteran’s right and left lower extremity disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have an examiner with appropriate experience review the record and offer opinions as to each of the following questions: a. With respect to the Veteran’s prostate cancer, is it at least as likely as not (i.e., is it 50 percent or more probable) that the Veteran has suffered additional disability as a result of VA treatment? b. If the Veteran incurred additional disability as a result of VA medical care, was the additional disability the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable? 4. After the foregoing development has been completed to the extent possible, obtain an addendum opinion from a clinician with appropriate expertise as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran right and left lower extremity disabilities were incurred in service, or are otherwise attributable to, the Veteran’s active service. The examiner should provide a complete rationale for all opinions offered. If any opinion regarding any of the above-referenced questions cannot be provided without resorting to speculation, please provide complete explanations of why this is so. In so doing, please explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether you have exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.