Citation Nr: 21003514 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-54 031 DATE: January 21, 2021 ORDER Entitlement to service connection for left hand joint pain is dismissed. Entitlement to service connection for right hand joint pain is dismissed. Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. Entitlement to service connection for degenerative arthritis of the cervical spine is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran explicitly, unambiguously, and with a full understanding of the consequences withdrew his appeal of denial of service connection for left hand joint pain on the record during his June 2020 hearing before the undersigned. 2. The Veteran explicitly, unambiguously, and with a full understanding of the consequences withdrew his appeal of denial of service connection for right hand joint pain on the record during his June 2020 hearing before the undersigned. 3. The Veteran’s current degenerative arthritis of the lumbar spine is at least as likely as not the result of the lower back condition noted in service treatment records. 4. The Veteran’s current degenerative arthritis of the cervical spine is at least as likely as not the result of an in-service injury. 5. The Veteran’s current headache disability is proximately due to his degenerative arthritis of the cervical spine. 6. The Veteran at least as likely as not has PTSD as a result of an in-service stressor. CONCLUSIONS OF LAW 1. The criteria for dismissal of the issue of service connection for left hand joint pain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of the issue of service connection for right hand joint pain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.012, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for degenerative arthritis of the cervical spine have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.012, 3.303, 3.304, 3.307, 3.309. 5. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.012, 3.303, 3.304, 3.310. 6. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.012, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1986 to February 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board acknowledges previous March 2014 and November 2015 rating decisions initially denied the Veteran’s service connection claims for cervical and lumbar spine disabilities, respectively; however, the record reflects the Veteran submitted new and material evidence in the appeal period of those decisions, with the claims not being readjudicated until the September 2016 rating decision on appeal, making it unnecessary to discuss whether the claims should be reopened. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Veteran appeared at a hearing before the undersigned in June 2020. A transcript of the hearing is of record. 1. Entitlement to service connection for left hand joint pain is dismissed. 2. Entitlement to service connection for right hand joint pain is dismissed. 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. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran clearly and unambiguously withdrew his appeal of the denial of service connection for left hand and right-hand joint pain on the record during the June 2020 hearing before the undersigned. The undersigned confirmed that the Veteran understood the consequences of withdrawing the claims by informing him that they would now be subject to a final decision, making him ineligible for an effective date based on his previous claims if they are subsequently readjudicated and granted in the future, and he affirmatively responded that he no longer desires to pursue the claims. As a result, the Board finds Veteran has explicitly, unambiguously, and with a full understanding of the consequences withdrawn his appeal of the denial of service connection for left hand and right-hand joint pain. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). There is no remaining allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues of service connection for left hand and right-hand joint pain, and they are dismissed. 3. Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus requirement for a chronic disease listed in 38 C.F.R. § 3.309(a) can be established on a presumptive basis if the condition manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The nexus requirement can also be established by a continuity of symptomatology when a 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. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A condition is considered to be “noted during service” when there is symptoms indicative of, but not dispositive of, a chronic disease. Id. at 1339. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the record conclusively establishes the Veteran has degenerative arthritis of the lumbar spine. Arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a). Service treatment records show the Veteran sought treatment for lower back pain on multiple occasions during the later part of his period of active service; therefore, a lumbar spine condition was noted during service. The Agency of Original Jurisdiction (AOJ) initially denied service connection for a lumbar spine disability on the basis that a chronic disease was not confirmed in service or in the one-year presumptive period after service despite the opinion of an October 2015 VA examiner who opined that the Veteran’s current lumbar spine disability is at least as likely as not onset during service with manifestation of back pain in 1992. During his June 2020 hearing, the Veteran credibly and competently testified that he has experienced lower back pain since his separation from service, even though he was not always able to seek treatment for his condition due to a lack of health insurance in the years immediately following his separation from service. The first available post-service treatment records confirm the presence of a chronic disability consistent with the Veteran’s reports. As a result, the Board finds a continuity of symptomatology links the Veteran current arthritis of the lumbar spine to the condition noted in service, a finding which is further supported by the positive nexus opinion provided by the Veteran’s October 2015 VA examiner. The Board acknowledges a subsequent VA examiner in August 2016 provided a negative nexus opinion in the context of environmental exposures incurred during the Veteran’s Gulf War service; however, nexus opinions are unnecessary in the context of the Gulf War presumptive provisions outlined in 38 C.F.R. § 3.317, making the August 2016 VA examiner’s opinion of little to no probative value. Thus, the evidence is in at least relative equipoise regarding the Veteran’s claim. Resolving reasonable doubt in the Veteran’s favor, the Board finds service connection for degenerative arthritis of the lumbar spine is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). 4. Entitlement to service connection for degenerative arthritis of the cervical spine is granted. The general principles relating to service connection noted above are also applicable to the Veteran’s service connection claim for a cervical spine disability. Similar to his service connection claim for a lumbar spine disability, the record conclusively establishes the Veteran has degenerative arthritis of the cervical spine; therefore, the current disability element of his claim has been established. The Veteran has consistently reported that he initially injured his neck playing softball in service when he slid into a base headfirst and rammed his head and shoulder into another player’s legs. Although the precise details of this event are not documented in service treatment records, there are several entries documenting injuries playing softball and a September 1991 entry, noting neck and shoulder pain, swelling, bruising, and range of motion loss from an apparent contact injury consistent with the Veteran’s reports. Thus, the Board’s finds there is sufficient evidence to establish the incurrence of an in-service injury. The only issue that remains is whether there is a nexus between the Veteran’s current disability and the in-service injury. There is conflicting evidence regarding the nexus element of the Veteran’s service connection claim for a cervical spine disability. The Veteran’s initial February 2014 VA examiner explicitly considered the in-service injury but reported the Veteran’s current disability is more likely the result of the repetitive motion of turning his head as part of his work as a truck driver for several years after service; however, the Board notes service personnel records confirm the Veteran was also a motor transport operator for approximately ten years during active service with the February 2014 VA examiner providing no definitive differentiation between the Veteran’s in-service duties and post-service work as a truck driver with regard to repetitive motion of the head. In December 2014, a private physician, L.F., M.D., provided an opinion indicating the Veteran’s current cervical spine disability is “possibly” the result of the reported in-service injury with the repetitive motion of the head due to his duties as a truck driver exacerbating his symptoms. A subsequent January 2015 opinion from another private physician, D.J., M.D., indicates the Veteran’s current cervical spine disability is “more likely than not” the result of the in-service injury. In June 2016, a third private physician, K.L., M.D., who reviewed the Veteran’s service treatment records, also reported the Veteran’s current cervical spine disability is “more likely than not” the result of the in-service injury in light of his review of the contemporaneous treatment records related to the in-service injury when viewed in conjunction with manifestation of chronic neck pain since the Veteran’s separation from service. As with the Veteran’s service connection claim for a lumbar spine disability, an August 2016 VA examiner provided a negative nexus opinion in the context of environmental exposures incurred during the Veteran’s Gulf War service, but, as previously noted, this opinion is of little to no probative value in the Board’s analysis of the Veteran’s claim. As a result, the Board finds there is an approximate balance of positive and negative evidence regarding the nexus element of the Veteran’s service connection claim for a cervical spine disability. The February 2014 VA examiner clearly attributed the disability to the Veteran’s post-service duties as truck driver, even though the Veteran performed similar duties during service, with three private opinions weighing in favor of a favorable nexus finding, although only one of these opinions appears to be based on a review of evidence similar to that considered by the February 2014 VA examiner. Resolving reasonable doubt in the Veteran’s favor, the Board finds service connection for degenerative arthritis of the cervical spine is also warranted. See Wise, 26 Vet. App. at 531. 5. Entitlement to service connection for headaches is granted. Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. Here, a private physician, M.A., M.D., provided an opinion in August 2020 that explains the Veteran’s current headache disability is most likely due to the degenerative changes of his cervical spine due to disc bulging, arthritis, and spinal stenosis causing radiating pain up the neck and into the sides of the head producing tension headaches. There is no evidence that rebuts the favorable August 2020 private opinion. Thus, the Board finds service connection for headaches is also warranted. 6. Entitlement to service connection for PTSD is granted. The Veteran also seeks service connection for PTSD. Service connection for PTSD generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See Cohen v. Brown, 10 Vet. App. 128, 139-43 (1997); 38 C.F.R. § 3.304(f). If a claimed stressor is related to the fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the claimant’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the claimant’s service, the claimant’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). For purposes of 38 C.F.R. § 3.304(f)(3), “fear of hostile military or terrorist activity” means the claimant experienced, witnessed, or was confronted with an event or circumstances that involved actual or threatened death or serious injury, or a threat to the physical integrity of the claimant or others, such as from an actual or potential improvised explosive device, vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the claimant's response to the event or circumstances involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. A July 2016 VA examiner diagnosed the Veteran as having adjustment disorder with anxiety and depressed mood and reported the Veteran does not met the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), criteria for a PTSD diagnosis. Although the July 2016 VA examiner conceded the Veteran’s in-service stressors were adequate to support a PTSD diagnosis, she specifically noted the Veteran does not meet Criterion B (presence of one or more of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred), Criterion C (persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic events(s) occurred), or Criterion D (negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred) for a PTSD diagnosis under the DSM-5 criteria. (Continued on the next page)   Yet, in March 2020, the Veteran provided a detailed opinion and disability benefits questionnaire completed by a private psychologist, E.T., Ph.D., that explicitly explains how the Veteran meets Criterion B, C, and D under the DSM-5 criteria for a PTSD diagnosis. The psychological assessment prepared by E.T., Ph.D., appears more comprehensive than that of the July 2016 VA examiner and also more consistent with the Veteran’s lay reports during the June 2020 hearing before the undersigned, especially with regard to symptoms of re-experiencing trauma, avoidance of stimuli, and persistent of increased arousal; therefore, the Board assigns the March 2020 psychological assessment more probative weight than the July 2016 VA examiner’s report. The Board acknowledges the Veteran’s reported stressors have not been verified. While VA regulation provides for the award of service connection for PTSD in the absence for a confirmed stressor when a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the claimant’s symptoms are related to the claimed stressor, there is nothing that prohibits the Board from finding that the Veteran’s reported stressor occurred based on his credible testimony. See 38 C.F.R. § 3.304(f)(3). The Veteran’s reports have been remarkably consistent throughout the appeal period, to include during treatment and during the June 2020 hearing before the undersigned. Both the July 2016 VA examiner and the author of the March 2020 private psychological assessment agree the Veteran’s reported stressors are sufficient to support a PTSD diagnosis. There is nothing inherently incredible in the Veteran’s reports as they are clearly consistent with the places, types, and circumstances of his service in the Persian Gulf. Thus, the Board finds the Veteran’s credible testimony is sufficient to establish that his reported stressors at least as likely as not occurred. As the June 2020 private psychological assessment is at least as probative as the July 2016 VA examination report, the Board finds service connection for PTSD is warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.