Citation Nr: 20031271 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 17-41 728 DATE: May 5, 2020 ORDER Entitlement to service connection for a lumbar spine condition is granted. Entitlement to an effective date prior to January 25, 2016 for the grant of service connection for post-traumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. A lumbar spine disability did not manifest in service or within one year of separation from service but there is a relatively equal balance of evidence for and against a finding that the current lumbar spine disability was caused by carrying heavy loads in combat in Vietnam. 2. The RO received evidence that the Veteran had a diagnosis of PTSD on January 25, 2016, after a private examination conducted on January 21, 2016. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a thoracolumbar spine disability have been met. 38 U.S.C. § 1101, 1110, 1113, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for an effective date prior to January 25, 2016 for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.156(c); 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from August 1967 to March 1970 including service in the Republic of Vietnam. He was awarded the Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding has been associated with the Veteran's claims file. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. § §§ 3.303(b), 3.309. Lumbar spine condition The Veteran contends that his lumbar spine condition is caused by service. Specifically, the Veteran contends that his lumbar spine condition began in-service, while stationed in Vietnam, and has continued since that time. The Veteran is competent to describe his ongoing symptoms, in-service duties and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not caused by an in-service injury or disease. In a March 1970 report of medical examination at the time of discharge from service, the clinical evaluation revealed all systems were normal; including the Veteran’s upper extremities; lower extremities; and spine and other musculoskeletal systems. See July 2015 STR-Medical, p.3. In April 1996, the Veteran had an MRI. The clinician diagnosed of chronic back pain and noted that the Veteran had grade 2 spondylolisthesis at L5 on S1; and also grade 1 retrolisthesis of L4 on L5. See August 2017 Medical Treatment Record-Non-Government Facility, p.20. There were no clinical comments about the onset or origin of the back pain. In April 2009, the Veteran was seen by a private physician and obtained another MRI of the lumbar spine. The private physician noted the Veteran’s report of no previous traumatic injury and that he had been experiencing back pain for two weeks. The impression given was that there was moderate degenerative disc disease at the T11-12; and mild degenerative disc disease with slight bulging at the L1-2 and L-3. There was also mild disc disease with a moderately large hernia at L3-4. In addition, there was mild degenerative disc disease at L4-5 and underlying spondylosis; as well as moderate degenerative disc disease at L5-S1. See August 2017 Medical Treatment Record-Non-Government Facility, p.16. In a June 2015 statement in support of claim, the Veteran stated that it was his belief that his back injury was caused by carrying a radio and other combat equipment on a regular basis and that he had problems with his back since leaving service. See June 2015 VA 21-4138 Statement in Support of Claim. In September 2015, the Veteran underwent a back (thoracolumbar spine) conditions examination. The examiner reviewed the Veteran’s STR’s and VA treatment records. The examiner also noted that the Veteran had not provided his civilian records. The examiner indicated that the Veteran had not been diagnosed with a thoracolumbar spine condition. The Veteran reported that while he was deployed in Vietnam, he carried a field pack, a radio, his weapons, extra mortar rounds, ammo and water. The Veteran denied having a specific injury while in-service but indicated shortly after service he began to have low back pain. The Veteran reported that at that time he was seeing a chiropractor, neurosurgeon and orthopedic surgeon for back pain. The examiner concluded that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was that the Veteran’s STR’s did not show a back condition while in-service, there was no reports of an injury or event while in-service and there was no evidence of a current disability. However, the examiner did not order any concurrent imaging studies, and some private records were later submitted and are now associated with the Veteran’s file. While, the examiner at the time gave an adequate rationale, the examination has low probative weight. In November 2015, the Veteran had a listed diagnosis of congenital spondylolisthesis; lumbar disc disorder and chronic low back pain. See January 2016 Medical Treatment Record-Non-Government Facility, p.2. In a December 2015 private treatment note, a physician noted that reviewed the Veteran’s record and conducted an examination. The examiner indicated that without certainty that the Veteran “most likely” had congenital spondylolisthesis of the L5 with moderate arthritic change of the lumbar spine. The Veteran reported that he had dealt with chronic back pain over a 5-decade period and that his pain occurred due to carrying a heavy portable radio in Vietnam. The examiner noted that there were no other back injuries in service and that the Veteran worked as an electronic technician; however he did not have any lifting responsibilities. The examiner also noted the Veteran was seen in 1996 for low back pain and in 2009 for lumbar disc disease with recommendation of surgery, which the Veteran declined. The examiner concluded that it was at least a 50% probability that the current back pain was aggravated by service and worsened his congenital spondylolisthesis. However; the examiner did not give a rationale as to why the condition was related to service. See January 2016 Medical Treatment Record-Non-Government Facility, p.1. In February 2020, the Veteran attended a hearing. The Veteran’s representative testified that during a September 2015 VA examination, an examiner indicated that he did not have a chronic lumbar spine condition; and the Veteran claimed he did in fact have a permanent chronic lumbar spine condition. See Hearing Transcript p.3. The Veteran indicated that 3 months after that examination he went to his family doctor, whom he had been seeing for 30 years and the doctor indicated that it was his belief that the Veteran had spondylolisthesis, which was worsened by his time in combat in Vietnam. See February 2020 Hearing Transcript, p.4. The Veteran testified that while in-service he was a field radio operator, and he was responsible for a helicopter support team. The Veteran indicated that he carried radio and batteries. The Veteran indicated during the war when he was having back pain, he couldn’t stop in order to be checked out. The Veteran and his representative noted that while the VA did not give him a diagnosis his private doctor gave him a diagnosis and provided an opinion. See February 2020 Hearing Transcript, p. 5. The Veteran also indicated that doctors felt his condition was severe enough that it warranted surgery. However, the Veteran stated that surgery would be the last thing he would do. See February 2020 Hearing Transcript, p.6. The Board finds that the current disability element for the lumbar spine claim has been established. As noted above, the medical evidence of record discloses a current diagnose of spondylosis; and chronic low back pain; hence the present disability prong has been met. See Shedden, supra. Thus, the dispositive issues as to this claim is the establishing of in-service incurrences (or diagnoses within one year of separation from service) and whether the condition was caused or aggravated by active duty service. Id. The Veteran has offered a lay account concerning the in-service occurrence of the lumbar spine condition. The Veteran’s reports of carrying heavy loads in combat in Vietnam is credible as it is consistent with the nature and circumstances of his service. Service records do not show an onset of back pain while on active duty, but the Veteran reported an onset several years later. During the hearing, he testified that his post-service occupation did not require heavy lifting. Although he testified that he received treatment and therapy after service, there are no records of this care prior to the imaging studies in 1996, and those records do not address onset or cause for the degenerative disease. The Veteran’s report of experiencing back pain for decades was accepted by his private physician as consistent with the history and imaging studies. There is no evidence to rebut the Veteran’s report of an onset of pain within a few years from discharge. Therefore, the Board finds that the Veteran’s reports of chronic back pain since a few years after service warrants some credible weight There is a relatively equal balance of evidence both for and against whether the current back disability was caused by the wear and tear of carrying heavy loads in the field during his tour of duty in Vietnam from February 1969 to November 1969. A VA examiner acknowledged the Veteran’s Marine duties found in part that the disorder was not caused by service because there was no service treatment record of injury. The private physician also acknowledged the duties and accepted the Veteran’s reports and found that it was likely that the duties caused the current disability but without much rationale. In conclusion, the Board finds that there is a relative equal preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine condition, and the “benefit of doubt” doctrine is applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § § 3.102. For these reasons, service connection for a thoracolumbar spine disability is granted. Effective Date – PTSD The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for PTSD. The Veteran checked the effective date box in his June 2017 notice of disagreement (NOD). As will be discussed in further detail below. The Veteran and his representative feel the correct effective date is June 30, 2014, the date of the Veteran’s original claim. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, VA recognized formal and informal claims. A claim is defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action indicating intent to apply for one or more benefits and must identify the benefit sought. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims both formal and informal for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on a specific claim form prescribed by the Secretary, which is available online or at the local Regional Office. These amendments, however, are only applicable with respect to claims filed on or after March 24, 2015, and thus are not applicable in the present case. Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). VA must perform a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Under the provisions of Public Law No. 112-154, Section 506, now codified at 38 U.S.C. § 5010, an effective date for an original application may be backed up for one year prior to the receipt of the application, providing other pertinent conditions are met. See 38 U.S.C. § 5010. Section 506 of PL 112-154 establishes different rules for the assignment of effective dates that are specific to claims decided under the FDC process. Section 506 of PL 112-154 was codified as 38 U.S.C. § 5110(b)(2)(A). The rules governing the assignment of effective dates for claims decided under the FDC process apply to the present claim. 38 U.S.C. § 5110(b)(2)(A). 38 U.S.C. § 5110(b)(2)(A) provides that "the effective date of an award of disability compensation to a Veteran who submits an application therefor that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application." A claim of service connection submitted through the FDC process by definition meets the statutory requirement of "an original claim that is fully-developed." See 38 U.S.C. § 5110(b)(2)(B). 38 U.S.C. § 5110(b)(2)(A) does not establish that the effective date for claims filed under the FDC process should automatically be one year prior to the date of the filing of the formal claim for service connection. Instead, the statute states that the effective date shall be fixed in accordance with the facts found, so long as the date established by the facts is not earlier than one year prior to the date of the receipt of the application for service connection. Thus, the earliest possible effective date for the award of service connection for PTSD is January 25, 2016, which is the date entitlement arose. On June 30, 2014, the RO received a VA Form 21-526EZ from the Veteran. Among other claimed disabilities, the Veteran claimed mental health, bilateral hearing loss and tinnitus and a lumbar spine condition. See June 2014 VA-21-526EZ, Fully Developed Claim (Compensation), p. 2. The Veteran underwent a VA mental health examination in September 2015. In a lengthy report, a VA psychologist noted a review of the claims file, examined the Veteran, summarized his reported Marine and family history, but found that the Veteran did not have a current psychiatric disorder of any kind. In October 2015, the RO denied service connection for a mental health disorder including anxiety, depression, and PTSD because the Veteran had not been diagnosed with a current disability. See October 2015 Rating Decision-Narrative. Turning to the issue of when entitlement arose, the Veteran was afforded a private treatment examination on January 21, 2016, which was received on January 25, 2016. However, as mentioned below during the Veteran’s hearing testimony the RO did not accept the examination because the examiner was a therapist and not a clinical psychologist. So, on August 23, 2016, a licensed clinical psychologist examined the Veteran, provided an opinion and confirmed the January 2016 examiner’s diagnosis. See September 2016 Medical Treatment Record-Non-Government Facility, p.2. In a January 2017 rating decision, the RO finally granted service connection for PTSD with an evaluation of 70 percent with an effective date of May 6, 2016. See January 2017 Rating Decision-Narrative. Then, in a June 2017 rating decision, the RO granted an earlier effective date for PTSD effective January 25, 2016, the date entitlement arose; since the evidence that the Veteran had a diagnosis of PTSD was submitted on that date. See June 2017 Rating Decision-Narrative. During the February 2020 hearing, the Veteran’s representative indicated that the effective date of the grant for service connection for PTSD should have been June 30, 2014. See February 2020 Hearing Transcript, p.6. The Veteran’s representative indicated that the Veteran filed his original claim for PTSD and tinnitus on June 30, 2014. The tinnitus claim was granted with an effective date of June 30, 2014 but not the PTSD claim. See February 2020 Hearing Transcript, p.7. The Veteran testified that he was given three examinations for PTSD the first was on January 21st, 2016. See February 2020 Hearing Transcript, p.9. There was also another examination dated August 23, 2016. See February 2020 Hearing Transcript, p.11. In March 2020, a letter was submitted by a private psychologist. The psychologist indicated that the Veteran completed a mental status and diagnostic examination in August 2016. The psychologist indicted that the Veteran had been symptomatic in 2014. Since his trauma dated back to the 1960’s and early 1970. See March 2020 Medical Treatment Record-Non-Government Facility, p.1. The Board acknowledges the above evidence and recognizes that the Veteran's VA Form 21-526EZ was received on June 30, 2014. However, the date of entitlement arose on January 25, 2016, the day when the Veteran was diagnosed with PTSD under the DSM-5. Regulations require an effective date for service connection to be the date of claim or the date entitlement arose, whichever is later. In this case, January 25, 2016, the date entitlement arose was the later date. There is otherwise no legal basis for the assignment of an effective date earlier than January 25, 2016, for the grant of service connection PTSD. Therefore, entitlement to an earlier effective date for the grant of service connection for PTSD must be denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.