Citation Nr: 20033095 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 16-12 684 DATE: May 12, 2020 ORDER The appeal of the issue of an increased disability evaluation for service-connected lumbar-spine disorder remains dismissed. REMANDED Entitlement to service connection for cervical spine disorder, with left-arm numbness, to include as secondary to service-connected lumbar-spine disorder, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and post-traumatic stress disorder (PTSD), is remanded. FINDING OF FACT At a personal hearing before the Board in October 2018, the Veteran, through his authorized representative, withdrew the issue of an increased disability evaluation for service-connected lumbar-spine disorder. No further evidence on this issue was subsequently submitted. CONCLUSION OF LAW The criteria for withdrawal of an appeal for an increased disability evaluation for service-connected lumbar-spine disorder by the Veteran and his authorized representative have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from October 1972 to October 1974, from October 1974 to November 1979 and from November 1979 to November 1980. In October 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Upon the Board’s March 2019 dismissal of the lumbar-spine claim and the denial of the cervical spine and psychiatric claims, the Veteran appealed to the Court of Appeals for Veterans Claims (Court), which in turn vacated the dismissal and denials and remanded those matters in December 2019 for action consistent with the Joint Motion for Remand (JMR) submitted by the parties. The JMR noted that the Board erred by failing to ensure that the Department of Veterans Affairs (VA) complied with its duty to assist under the requirements of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 (c). Specifically, an April 2015 VA examination for cervical spine did not contain a “reasoned medical explanation” connecting the supporting data and conclusions regarding the Veteran’s cervical-spine disorder necessary for an adequate opinion under 38 U.S.C. § 5103A, and the Board did not adequately discuss (1) evidence reflecting that the Veteran began suffering from psychiatric symptoms during his military service, or (2) whether he effectively withdrew his appeal involving entitlement to an increased disability evaluation for lumbar-spine disorder. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As noted, these matters have been returned to the Board and are addressed below. DISMISSAL The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2019). Withdrawal may be made by the appellant or by his or her authorized representative. 38C.F.R. §20.204. In the present case, the Veteran and his authorized representative have withdrawn this appeal as to the issue of an increased disability evaluation for lumbar-spine disorder, and there now remain no allegations of errors of fact or law for appellate consideration of that issue. The Veteran was fully represented at the hearing and the Board is satisfied that he understood the effect of the decision. Accordingly, the Board does not have jurisdiction to review the appeal as to that issue and it is dismissed. The JMR asserts that the Board’s dismissal of this claim was not supported by an adequate statement of reasons or bases. Although the Veteran’s representative in his introductory statement at the October 2018 Board hearing stated formally the desire of the Veteran to withdraw the appeal for this claim, the JMR observes that the Veteran’s back complaints were subsequently discussed multiple times throughout the hearing, including in the testimony of the Veteran himself. Yet, there was no additional discussion by the Veteran, his representative or the presiding Veterans Law Judge regarding this withdrawal. From this, the JMR concludes the Board did not provide an adequate statement of reasons or bases to support its implicit determination that, because the Veteran was represented during his October 2018 hearing, he is presumed to have understood the consequences of his withdrawal, especially in light of his continued references to that claim following its alleged withdrawal. The JMR therefore further directs the Board should specifically consider and adequately discuss whether the Veteran’s October 2018 testimony constituted a knowing withdrawal of his claim for entitlement to an increased disability evaluation for lumbar-spine disorder. At the outset, the Board notes that specific mention of the Veteran’s “back” at the October 2018 Board hearing is made after the Veteran had recounted in detail the accident in which during a maintenance task in a tank he was struck in the forehead by the recoil of a brake pedal which mistakenly had been unlocked. This was in reference to the claimed cervical spinal disorder, which, it has been contended is, in part, secondary to the service connected low back disorder. After discussing the event involving the cervical spine the Veteran’s representative asked, “And I’m sure it goes without saying that your back, which you claim about probably more [sic] –I’m sure the pain in your back was a little bit more than your neck back then?” The Veteran responded, “Oh[,] the pain in my back was bad enough I couldn’t hardly walk. And I’ve had one surgery on my lower back, they want to fuse me and I won’t let them because I’m too old. Everybody I talked to ends up being worse off and can’t walk at all, or ends up in a wheelchair. I still need to support my family, so I work.” October 2018 Board Hearing Transcript at 6. Although this exchange may appear to revisit the claim for an increased disability evaluation for service-connected lumbar-spine disorder, the larger context of which this testimony is but a part convinces the Board this is not so. First, the question by the representative directly following this exchange is, “So if you don’t mind my asking, in treating [your] back, you probably were able to take care of the neck in the same instance, I’m guessing?” Transcript at 6. This plainly indicates that the question beginning with the Veteran’s “back,” that is to say, his lumbar-spine, provides a factual foundation that the Veteran had treatment for his lower back, either earlier than the incident, nearly at the same time or sometime afterward, and suggests that whenever the treatment was, the Veteran may have referred to his cervical spine disorder or sought treatment for it as well. In other words, by first making reference to the lumbar-spine disorder, the representative, in effect, then targeted his inquiry on the more pertinent issue of when, under what circumstances and with what results was the Veteran’s cervical spine then examined and treated. If it is asserted that, in having responded with the above details of his pain, surgery and ongoing work, the Veteran nonetheless indicated his continued pursuit of his claim despite the utterance of words of withdrawal by his representative and therefore exhibited a lack of understanding of those words, once again, it is the Board conviction that such an interpretation is not borne out by the wider context of the hearing testimony. Specifically, when asked by the undersigned regarding being struck in the forehead, “Now, was your low back injured in the same incident at the same time,” the Veteran promptly responded, “No. That was a different incident. That was loading…” 55-gallon-drums of oil. Transcript at 14. As the question simply sought clarification regarding the times and circumstances of events, the Veteran provided it. A last reference to the lower back is made by the Veteran when explaining his neck-pain when servicing automobiles in tight spaces and maintaining upside-down positions. He briefly stated, “It wasn’t until I had --my lower back went totally out, and I couldn’t wrench anymore…. So I agreed. I bought a franchise and now I’m a Mac tool person [a seller of brand-name tools],” by which he simply had explained he no longer does repairs in awkward postures which cause neck-pain. Transcript at 15. The Veteran’s testimony regarding each claim now before the Board was detailed and articulate. Based on a reasonable interpretation of this sequence of conventional questions and responses during testimony, the Board can discern no basis on which to conclude the Veteran’s understanding to be otherwise than sound overall and giving no indication to the Board of any particular deficiency in the ability to understand the import of what his representative stated on his behalf. Furthermore, to the extent that additional evidence was added to the record, it concerned the other issues on appeal without reference to the low back. For these reasons, the claim for an increased disability evaluation for service-connected lumbar-spine disorder remains dismissed. REASONS FOR REMAND 1. Entitlement to service connection for cervical-spine disorder, with left-arm numbness, to include as secondary to service-connected lumbar-spine disorder. The JMR asserts that the April 2015 VA examiner for cervical spine did not support his conclusion that the Veteran’s “lumbar spine condition would not affect the upper body, but would only affect the lumbar spine and down” with a reasoned medical explanation connecting that conclusion to any supporting data. Additionally, as it relates to direct service connection, the VA examiner’s determination that “with insufficient evidence a service connection is unremarkable for the time being” does not constitute a clear conclusion. The JMR therefore directs the Board shall either afford the April 2015 VA examiner the opportunity to clarify his opinion or provide the Veteran a new medical opinion adequate to satisfy the duty to assist. In accordance with the above, the Board remands the matter. 2. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD. The JMR asserts that the Board found the objective medical evidence showed that an acquired psychiatric disorder was neither caused by nor related to his military service and the Veteran did not seek treatment for a psychiatric disorder until approximately 32 years after the relevant event in service, but the Board failed to address the Veteran’s testimony that he began suffering from psychiatric symptoms during his military service. Specifically, the Veteran had contended that his psychiatric problems were caused by the circumstances surrounding his wife’s death while they were serving in the United States Army. The Veteran testified that he began suffering from psychiatric symptoms the day after his wife died and isolated himself for years immediately after her death. The Veteran also testified that for several years after his wife’s death he self-treated with alcohol and explained that, while it took him some time to seek treatment, he eventually went to VA for treatment, found it not to be helpful and decided that he would deal with his problems himself. However, the JMR notes the Board did not discuss the above testimony, to include the probative value, if any, it assigned to that evidence, frustrating judicial review, further noting it is well settled that “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997); see also Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991) (noting that the “regulation requires continuity of symptomatology, not continuity of treatment”). Therefore, on remand from the Court, the Board is instructed to consider and discuss the Veteran’s October 2018 testimony, to include whether the preponderance of the evidence supports a continuity of symptomatology. The Board notes in its review of the record that the June 2013 VA psychiatric opinion addressed the question, “Is the veteran’s major depressive disorder at least as likely as not incurred in [sic] or caused by the death of his wife that occurred 10/17/1980 during the veteran’s military service?” The VA examiner opined: An examination completed on 3/22/13 indicated the following: “The claimant reports that his wife’s death had left him with depression since that time. At the time of her death, they were both in Europe and reports he had to go identify her body 30 days after he got married. His wife had a five year old daughter at that time which he was trying to adopt. Since she was an Indian (Apache) the tribe came and took the daughter away from him.” Collateral treatment records in the examination report include some information that suggest some negative ruminations about [the Veteran’s] first spouse’s death in 1980. However, this event occurred in 1980 and [the Veteran] was not treated for mental health concerns until 2012. As such, there is no continuum of treatment that would suggest that depressive symptoms have been consistently or even intermittently present since his wife’s death 32 years ago. This opinion states “continuum of treatment,” which the Board interprets as evidence of psychiatric treatment. The opinion does not speak to the Veteran’s competent identification of symptoms and impermissibly relies on a lack of documented psychiatric evidence. As such, the Board will in turn remand the matter for a new VA psychiatric opinion, by which the issue of continuity of symptomatology is best initially addressed. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment at any VA facility and by any private treatment provider for cervical-spine disorder and for a psychiatric disorder, to include any treatment rendered for any time during or after separation from service. If any treatment for alcohol use was obtained, that information should be provided and an attempt to obtain records should be undertaken. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for a clarification opinion by the April 2015 VA examiner for cervical spine, if he is still available. If he is not, arrange for the review of the claims file by another examiner with an appropriate specialty for producing findings for cervical-spine disorders. The complete electronic claims file must be made available to the examiner in conjunction with the examination. The examiner should detail all findings. If the examiner concludes a new examination of the Veteran is required, arrange for that examination. The examiner is requested to review the April 2015 VA examiner’s conclusion concerning direct service connection, that, “with insufficient evidence[,] a service connection [sic] is unremarkable for the time being.” As this does not constitute a clear conclusion for Board adjudication purposes, the VA examiner is asked to review the findings of the April 2015 VA examination for cervical-spine disorder and provide an opinion on direct service connection as follows: Whether it is at least as likely as not (a 50 percent or more probability) or less likely than not (less than a 50 percent probability) that cervical spine disorder is caused by an event, injury or illness during active service. The opinion offered must be phrased in clear and conclusive language. It must also be clear that full consideration has been given to the Veteran’s statements concerning the onset of the injury and the subsequent reported finding that the cervical disc problems were the result of an “old injury.” The opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported with references to and discussion of findings in the April 2015 VA examination or a new VA examination, if deemed necessary by the examiner, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is further requested to review the medical opinion accompanying the April 2015 VA examination for cervical-spine disorder, with its conclusion regarding secondary causation that the Veteran’s “lumbar spine condition would not affect the upper body, but would only affect the lumbar spine and down.” The examiner is asked to provide a rationale, by which this conclusion is supported with references to and discussion of findings in the April 2015 VA examination or a new VA examination, if deemed necessary by the examiner, or to clinical findings in the medical evidence of record and/or to accepted medical literature. 3. In regard to the claim of service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD, arrange for the review of the claims file by a VA examiner other than the June 2013 VA examiner with an appropriate specialty for producing findings for psychiatric disorders, to include major depressive disorder and PTSD. The complete electronic claims file must be made available to the examiner in conjunction with the examination. The examiner should detail all findings. If the examiner concludes a new examination of the Veteran is required, arrange for that examination. The examiner is requested to review in particular the June 2013 VA psychiatric opinion which responds to the question, “Is the veteran’s major depressive disorder at least as likely as not incurred in [sic] or caused by the death of his wife that occurred 10/17/1980 during the veteran’s military service?” The examiner is further requested to consider the Veteran’s October 2018 Board hearing testimony and any other lay evidence of the Veteran in rendering an opinion. Additionally, the VA examiner is specifically requested to consider in his or her analysis that symptoms, not treatment, are the essence of any evidence of “continuity of symptomatology,” as that concept is understood by the Board for adjudication purposes in determining service connection. Concern solely for the lack of psychiatric evidence of treatment for many years and a conclusion that this is therefore dispositive in formulating the opinion will be insufficient for VA purposes. It should be set out whether there are signs of psychiatric impairment in the actions and behavior of the Veteran in service and in the years immediately following service. An opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported with references to and discussion of findings in the June 2013 VA opinion or on a new VA examination, if deemed necessary by the examiner, to clinical findings in the medical evidence of record and/or to accepted medical literature. 4. After completing the above development review the record to ascertain that all development has been fully accomplished. If not, undertake corrective action. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.