Citation Nr: 20037557 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 17-46 058 DATE: June 2, 2020 ORDER Service connection for a low back disability is denied. REMANDED An increased disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran’s current back disability is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 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 from August 2000 to January 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board and remanded in December 2019 to obtain VA treatment records from the period between 2006 and 2009, and current psychiatric records. Additionally, the Board requested that the Veteran be given the opportunity to identify any additional treatment records. Subsequent to the December 2019 Board remand, VA treatment records for the period between 2006 and 2019 and psychiatric records were associated with the claims file. Further, in December 2019 and January 2020, the RO sent the Veteran a letter requesting that he submit any pertinent treatment records from any private physicians or hospitals. The Board notes that the Veteran has submitted any additional evidence. Accordingly, since the RO has completed the requested development, the Board’s December 2019 remand has been substantially complied with by VA. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for a back disability Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Further, where a Veteran served for at least 90 days during a period of war or after December 31, 1964, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease under 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptomology to establish service connection is limited only to those diseases listed under 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). With respect to evidence of current disabilities, the record shows the Veteran was diagnosed with degenerative arthritis of the spine in 2016. A current disability has therefore been demonstrated. Here, the Veteran maintains that he is entitled to service connection for back disability because he believes that his current back pain is related to an injury he reported occurred in service. Specifically, the Veteran claims that he was a parachutist and made five jumps. He stated that he landed badly on one jump and has muscle spasms and back pain since. He stated that he was treated with physical therapy and injections into the spine. The Veteran’s VA Form DD-214 reflects that the Veteran received the parachutist badge. However, his service treatment records do not reflect any injuries related to parachuting. A 2003 post-deployment health assessment reflects the Veteran indicated “no” for back pain and zero sick calls during the deployment. The record contains a second post deployment assessment for the same dates that reflects the Veteran indicated “yes” for back pain, but zero sick call during the deployment; he also indicated that his current health was “very good” and no medical problems developed during the deployment. The record of devoid of any physical therapy treatment or injection related to the spine. Post service treatment records show several reports of back pain. In July 2006, the Veteran denied back pain. In August 2007 the Veteran sought treatment for lumbar pain due to a fall at work, reporting that he slipped in water and hit his back, knee and neck. In November 2008, the Veteran reported a history of back pain, an x-ray study did not reveal any fractures of displaced disks. In December 2008, the Veteran presented for pain management, reporting that he injured his back while training at the gym. In September 2009, the Veteran reported that he hurt his back at work. Subsequently in December 2009, the Veteran restated that he threw his back out a few months prior, but the issue was well controlled. In April 2015, the Veteran reported that he initially injured his back in 2006 while performing a leg press in the gym. He was diagnosed with a disc bulge at L4-L5. He stated physical therapy makes him feel better. In November 2015, the Veteran reported that he had a history of low back pain since 2001, after falling on his back during deployment, he did physical therapy (which helped with the pain) and has been doing well since. In January 2016 the Veteran underwent a laminectomy and discectomy to alleviate the pain. The Veteran underwent a VA examination in July 2016. The examiner found his back disability less likely than not incurred in or caused by the claimed in-service injury. The examiner rationed that there is no report of an injury in service during the period of service that the Veteran maintains that his injury occurred, however there is evidence that the Veteran did have sick calls for an ankle sprain (from a misstep in the stairwell) and flu visits during that timeframe. In regard to the discrepancy on the post deployment assessment, the examiner found that despite the discrepancy, the back pain did not rise to the level of a diagnosis of back injury as the examining medical personnel did not indicate any diagnosis or referral for back issues. While the Veteran is competent to report having experienced symptoms of back pain during and since service; he has provided conflicting accounts as to the onset. The Board finds the Veteran’s lay statements of onset of back pain not credible, as there are conflicting lay statements of record post-service discharge. See Caluza v. Brown, 7 Vet. App. 498, 511(1995). As noted above, in December 2019 and January 2020, the Veteran was sent a letter requesting additional evidence to support his claim, particularly any medical treatment records or physician statements. To date, no such evidence has been submitted. The duty to assist is not a one-way street. A claimant may not passively wait for assistance when his cooperation is needed for evidentiary development he has asserted is critical to a claim for VA benefits [nor may he deliberately choose to ignore requests for authorizations for VA to secure records deemed necessary to properly adjudicate his claims]. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given the above, the Board finds the preponderance of the evidence does not establish an in-service incurrence. However, even if the Board were to assume that an in-service injury occurred, there is no competent and credible evidence linking the Veteran’s current back disability to his active duty service. As discussed above, the Veteran’s statements regarding continuity of symptomatology are not credible in light of the other statements recorded in the file and he is not competent to identify an in-service injury as the source of his current back disability when the record indicates that there are multiple potential causes. As a result, service connection for a back disability on a direct basis must be denied. Further, the Board finds the preponderance of the evidence does not establish the Veteran’s back disability manifested to a compensable degree within one year of separation or demonstrate chronicity and continuity of symptomatology post-separation. Therefore, the Board finds that service connection for a back disability on a presumptive basis as a chronic disease is also not warranted. REASONS FOR REMAND In January 2017, the Veteran was afforded a VA examination to determine the nature and etiology of his acquired psychiatric disorder. The examiner found the Veteran presented with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and mood. The Board finds the January 2017 VA examination to be inadequate for the purposes of determining the current severity of his disability. In that regard, the Board finds that the January 2017 VA examination is internally inconsistent. Specifically, the examiner stated that the Veteran’s suicidal and homicidal ideation risk level appears low, yet later in his report stated that the Veteran is currently flagged as risk for both suicide and assault potential. As the Veteran’s January 2017 VA examination is inadequate to base a decision, the Board finds that a new examination is needed to determine the current symptoms and level of severity of the Veteran’s PTSD. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The claims file should be made available to the examiner for review. The examiner should provide detailed findings as to the symptoms of the Veteran’s PTSD. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. V. Palatt, 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.