Citation Nr: 21002794 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 18-03 449 DATE: January 15, 2021 ORDER The Motion to Vacate the Board of Veterans’ Appeals (Board) June 25, 2020 decision on the issues of entitlement to service connection for lumbosacral spine disability and an acquired psychiatric disability is granted. Entitlement to service connection for a lumbosacral spine disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. On June 25, 2020, the Board issued a decision denying service connection for a lumbosacral disability and an acquired psychiatric disability. 2. In August 2020, the Board received a Motion to Vacate from the Veteran’s representative disagreeing with the Board’s decision based on due process grounds, specifically arguing that the Board was obligated to wait at least 30 days after the June 2020 Supplemental Statement of the Case (SSOC) before issuing a final decision on the claimed issues. 3. The Veteran’s lumbosacral 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 vacatur of the June 25, 2020 Board decision denying service connection for a lumbosacral spine disability and an acquired psychiatric disability have been met. 38 U.S.C. § 7104; 38 C.F.R. § 20.904 (a). 2. The criteria for entitlement to service connection for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1110, 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 with the Army from July 1967 to March 1969 with service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in June 2020, after the issuance of the Board’s June 25, 2020 denial, the Veteran’s representative submitted a Privacy Act Request for records added to the Veteran’s claims file since November 1, 2019. The representative also requested a 90 day stay from the date the records were provided to review the records and submit a response. In September 2020, the Veteran’s representative was provided with the entire VA claims folder. At the writing of this decision, more than 90 days after receiving a copy of the claims file, the Veteran’s representative has not provided any argument related to the claims at issue. Therefore, the Board will proceed with adjudicating the claims currently before the Board. 1. Motion to Vacate The Board of Veterans’ Appeals may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904 (2018). In the present case, the Board failed to wait 30 days after the issuance of the June 2020 SSOC to give the Veteran an opportunity to respond before entering a final decision. See 38 C.F.R. § 19.52 (c). Accordingly, the June 2020 Board decision addressing the issues of entitlement to service connection for a lumbosacral spine disability and an acquired psychiatric disability is vacated. This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100 (b). Rather, in the present decision below, the Board will reconsider the Veteran’s claims for entitlement to service connection for a lumbosacral spine disability and an acquired psychiatric disability, as if the previous June 2020 Board decision had never been issued. See 38 C.F.R. § 20.904 (a). The Board also notes that the other issues in the June 2020 Board decision, including denial of entitlement to service connection for hypertension, a cardiac disability, and hepatitis, as well as the remanded issues of entitlement to service connection for obstructive sleep apnea and entitlement to a total disability based on individual unemployability, are undisturbed by the Board’s present actions. 2. Entitlement to service connection for a lumbosacral spine disability The Veteran contends that an in-service back injury started the degenerative process which led to his currently diagnosed lumbosacral spine disability. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 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). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 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, 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, 53 (1990). As an initial matter, the Board finds that the Veteran has a current diagnosis of lumbar degenerative disc disease with spondylosis as evidenced by the January 2017 VA examination. Degenerative disc disease is an enumerated condition under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. The Veteran’s service treatment records include an April 1968 complaint for back pain. The Veteran had an orthopedic consult and was diagnosed with mild acute lumbar strain. In August 2018, the Veteran reported falling and had difficulty walking. He was assessed with a bruised back. In January 1969, the Veteran reported pain at his waist, which started when he was building a bunker. He was diagnosed with a lumbar strain. The Veteran’s March 1969 separation examination and report of medical history are silent for any complaints, diagnoses, or defects related to a back condition. The Veteran’s post-service treatment records include VA treatment records. The records show that the Veteran first complained of back pain in March 2009. In July 2016, a primary care note including an assessment of degenerative joint disease of the lumbar spine. Thereafter, the Veteran was diagnosed with degenerative arthritis of the spine after undergoing a VA examination in January 2017. The January 2017 VA examiner also opined that there was no evidence of continuity of treatment for the Veteran’s lumbosacral spine disability as the back injury in service was acute and transitory and the diagnosis of arthritis came well after separation from service. However, the Board notes that the January 2017 opinion was found to be inadequate in a November 2018 Board decision. An addendum VA medical opinion was issued in June 2020. The VA examiner again opined that there was no continuity of care for the Veteran’s claimed back disability as his medical records are silent for the claimed condition at least within five years after release from service and that there is no objective evidence included in the medical records to suggest any persistent symptoms after release from service. The Board finds the opinion to be adequate and probative as it is based on an accurate medical history and provides an explanation that contains clear conclusions with supporting data. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). After reviewing the evidence of record, the Board finds that the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran’s VA treatment records show that the Veteran was not diagnosed with degenerative arthritis of the lumbar spine until July 2016, decades after his separation from service and decades outside of the applicable presumptive period. The Board acknowledges the Veteran’s statement included in his February 2017 notice of disagreement that he was incapacitated and on bed rest for six and half weeks in 1970 due to his back. However, the evidence of record does not include any medical records or documentation to support his contentions. Furthermore, the evidence of record does not show a complaint for back pain until March 2009 and there is no evidence that the Veteran was experiencing continuous symptoms after separation from service. While the Veteran is competent to report his symptoms, the Board finds that his contentions lack credibility. Consequently, the Board gives more probative value to the objective medical evidence of record. Service connection for a lumbosacral spine disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s lumbosacral spine disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The June 2020 VA examiner opined that the Veteran’s lumbosacral spine disability is not at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s in-service back injuries. The rationale was that the examiner found that the Veteran’s in-service back injury was acute and transitory and resolved with correct treatment provided during service. The Veteran was diagnosed with degenerative disc disease more than 30 years after release from service, thus his condition more likely than not related to the natural process of aging. The Board finds the opinion to be adequate and probative as it is based on an accurate medical history and provides an explanation that contains clear conclusions with supporting data. See Nieves- Rodriguez, 22 Vet. App. 295. While the Veteran believes his lumbosacral disability is related to his in-service back injuries, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the opinion offered by the June 2020 VA examiner. In sum, the preponderance of the evidence is against finding that the Veteran’s lumbosacral spine disability is related to his active service, to include his in-service back injuries. Accordingly, entitlement to service connection for a lumbosacral spine disability is denied. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert, 1 Vet. App. at 54; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD is remanded. The Veteran contends that his currently diagnosed psychiatric condition is related to traumatic events he experienced while deployed to Vietnam. Alternatively, in his February 2017 notice of disagreement, the Veteran contended that his psychiatric condition was due to chronic pain. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In November 2016, the Veteran provided a statement regarding an in-service stressor related to his service in Vietnam, which he believes is attributed to his current psychiatric diagnoses. The Veteran contended that he witnessed an enemy artillery round land on his compound and kill two of his best friends. He further contended that the event was very traumatic and caused a psychological state of mind where he felt horror. He stated that since that moment, he has had constant memories of the event, sees images of the event, dreams constantly, experiencing hallucinations, and flashbacks. The Veteran stated that to avoid remembering, he stays in the house, reads, and avoids thinking or having conversations about it. He has problems with sleep, gets angry easily, and has problems concentrating. The claims record does not indicate that the Veteran’s stressor statement was ever researched or verified by the RO or the Joint Services Records Research Center (JSRRC). Further development is needed to verify the Veteran’s November 2016 stressor statement. The Veteran’s post-service medical records include a May 1974 VA examination where the Veteran was diagnosed with anxiety neurosis, chronic, with depressive features, severe. An etiology for his diagnosis was not given. The Veteran’s VA treatment records include a February 2006 psychiatric progress note where the Veteran reported that he ended his relationship with his girlfriend and was experiencing episodes of depression, crying spells, restlessness, and sleeping disturbances. He was diagnosed with depression and prescribed medication. In October 2006, the Veteran reported that he was feeling better and the physician found no current Axis I diagnoses. A decade later, in August 2016, the Veteran had a psychiatric consultation. The Veteran reported experiencing behavioral changes. He stated that he was traveling and started feeling anxious, irritable, and suspicious of the people around him. He was having difficulty sleeping. The Veteran was unable to identify any triggers for anxiety or irritability at the time. He was diagnosed with an anxiety disorder. During a September 2016 psychology appointment, the Veteran was diagnosed with both recurrent major depressive disorder and an anxiety disorder. In November 2016, during a psychology appointment, the Veteran reported that memories from his military service are becoming more constant. He stated that those memories are the reason why he retired early from his job as a school teacher. The psychologist noted that avoidance seems to be a coping mechanism for the Veteran. In subsequent VA treatment records, the Veteran continued to talk about his experiences in Vietnam and his current symptoms. The Veteran was afforded a VA examination in January 2017 and an addendum medical opinion was obtained in May 2020. The examiner opined that the Veteran does not have a diagnosis of PTSD under the DSM-5 criteria and that his diagnosed major depressive disorder is not related to his active service. The examiner only considered the lack of psychiatric treatment in service and the fact that a 2007 diagnosis was based on the Veteran’s relationship with a girlfriend ending. The examiner did not consider the Veteran’s service in Vietnam and whether the Veteran’s subsequent diagnoses included in the Veteran’s VA treatment records are due to his service in Vietnam. Thus, the Board finds that both the January 2017 and May 2020 VA examinations are inadequate, and a new VA examination is necessary. Additionally, the Veteran contended that his depression is due to chronic pain. His VA treatment records include a June 2017 psychology note where it was noted that the Veteran’s bodily aches and pains also seem to be having a negative impact on the Veteran’s mood. The Board finds that further information is needed from the Veteran to determine if he is contending that his depression is due to pain from service-connected or nonservice-connected conditions. The matters are REMANDED for the following actions: 1.Attempt to corroborate the Veteran’s in-service stressor with the assistance of the JSRRC. In a November 2016 Statement in Support of Claim for PTSD, the Veteran specifically contended that he witnessed the death of his two best friends due to enemy combatants while serving in Vietnam. If more details are needed, contact the Veteran to request the information. 2. Contact the Veteran to clarify whether the Veteran is contending that his acquired psychiatric disorder is secondary to chronic pain from a service-connected or nonservice-connected disability. Document any correspondence sent to the Veteran. 3.After the above-referenced development is completed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any diagnosed acquired psychiatric disorders, including anxiety disorder and major depressive disorder. The examiner must opine whether it is at least as likely as not related to the Veteran’s service in Vietnam, including his report of witnessing the death of his two best friends by enemy combatants. The examiner is also asked to offer an opinion as to whether the Veteran’s diagnosed conditions are at least as likely as not proximately due to chronic pain for a service-connected disability or aggravated beyond its natural progression by chronic pain due to a service-connected disability. The examiner is asked to consider all the evidence of record, including the VA treatment records and paying attention to the August 2016 psychiatric consultation and the psychiatric/psychological progress notes thereafter.   Any opinion expressed should be accompanied by a complete rationale. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hartford, 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.