Citation Nr: 21062358 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 19-31 375 DATE: October 7, 2021 ORDER Service connection for an acquired psychiatric disorder of unspecified reaction to severe stress and depression is granted. Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for a right knee disorder is denied. Service connection for a cervical spine disorder is denied. Service connection for a lumbar spine disorder is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with an acquired psychiatric disorder of unspecified reaction to severe stress and depression; the current acquired psychiatric disorder is related to service events. 2. An in-service stressor sufficient to cause PTSD has not been verified. 3. A right knee disability was noted at service entrance; the preexisting right knee disability, which was noted at service entrance, did not undergo an increase in severity during service beyond its natural progression. 4. The Veteran is currently diagnosed with stenosis in the cervical spine (cervical spine disorder); symptoms of the cervical spine disorder were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation; the cervical spine disorder did not have its onset during service, and is not otherwise etiologically related to service. 5. The Veteran is currently diagnosed with foraminal stenosis in the lumbar spine (lumbar spine disorder); symptoms of the lumbar spine disorder were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation; the lumbar spine disorder did not have its onset during service, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder of unspecified reaction to severe stress and depression have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 3. The preexisting right knee disorder was not aggravated by active service; therefore, the criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.306. 4. The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 5. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from December 1965 to October 1967. Service Connection Legal Criteria Service connection may 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(a). 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Veteran is currently diagnosed with stenosis of the cervical spine (as arthritis) and foraminal stenosis of the lumbar spine (as arthritis) which are "chronic diseases" under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § § 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Service connection for an acquired psychiatric disorder The Veteran seeks service connection for an acquired psychiatric disorder. The Veteran asserts that while he was deployed to Korea, he witnessed two civilians get electrocuted. The Veteran also credibly testified to riding in a vehicle that ran over a child, but that the driver would not stop the vehicle due to safety concerns. See August 2020 Board hearing transcript. The evidence shows a current diagnosis of unspecified reaction to severe stress and depression. See May 2018 VA treatment record. The evidence is at least in equipoise on the question of whether the currently diagnosed psychiatric disorder is etiologically related to service. The evidence weighing against service connection for an acquired psychiatric disorder includes the September 1967 service separation examination report finding the Veteran to be psychiatrically normal, and corresponding September 1967 Report of Medical History showing the Veteran denied psychiatric symptoms such as depression or excessive worry and nervous trouble of any sort. Evidence weighing in favor of service connection for an acquired psychiatric disorder includes an April 2021 VA examination report showing that the Veteran reported experiencing traumatizing incidents during service, including witnessing two civilians being electrocuted and riding in a vehicle that ran over a child. Upon examination of the Veteran, the April 2021 VA examiner opined that it is at least as likely as not that the Veteran's current psychiatric symptoms are related to the reported in-service incidents of witnessing the electrocutions and riding in a vehicle that ran over a child. The April 2021 VA examiner explained that the Veteran's psychiatric symptoms are consistent with those of an individual exposed to a stressful, frightening, or distressing event. Additionally, during the August 2020 Board hearing, the Veteran credibly testified to experiencing traumatic incidents during service while deployed to Korea. The Veteran testified that he witnessed two civilians get badly electrocuted in Korea during the summer of 1967. The Veteran testified that later that year in October 1967, he was riding in a military truck with a sergeant when the vehicle ran over a child but the sergeant refused to stop the vehicle. The Veteran further testified that he was discouraged from seeking mental health treatment during service, despite experiencing the above incidents. Based on the foregoing evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the current acquired psychiatric disorder of unspecified reaction to severe stress and depression began during service, that is, had its onset during service. This evidence meets the criteria for direct service connection for an acquired psychiatric disorder of unspecified reaction to severe stress and depression. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for PTSD The Veteran asserts that he has PTSD, and that PTSD is the result of witnessing two civilians being electrocuted and riding in a vehicle that ran over a child. See January 2018 Statement in Support of Claim for PTSD. Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with DSM-V), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. After a review of all the lay and medical evidence, the Board finds that the weight of the lay and medical evidence of record demonstrates that an in-service stressor sufficient to cause PTSD has not been verified. The Board finds that the Veteran did not engage in combat with the enemy; accordingly, the Veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressors and the record does not contain service records or other evidence to corroborate the Veteran's statements. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f); Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The Defense Personnel Records Information Retrieval System (DPRIS) searched unit records and historical documents, but were unable to verify the electrocution of two Korean civilians or that the Veteran was riding in a vehicle that hit a child in 1967. See May 2018 DPRIS Responses. Because the Board is not bound to accept uncorroborated accounts of stressors, the Board finds that there is no verified in-service PTSD stressor to which the current PTSD may be related. See Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Based on the foregoing, the Board concludes that there is no verified in-service stressor to which the current PTSD may be related; however, the record reflects that the Veteran is also diagnosed with of unspecified reaction to severe stress and depression, for which service connection has been granted in the Board's instant decision above. Because the claimed PTSD cannot be related to a verified in service stressor, the criteria for service connection for PTSD have not been met; therefore, claim for service connection for PTSD must be denied. 3. Service connection for a right knee disorder The Veteran contends that a preexisting right knee disorder was aggravated during service. In a July 2021 statement, the Veteran wrote that he reported a preexisting right knee disorder, described as loose right knee cartilage, upon entry into active service, and that six-mile hikes while wearing military packs during basic training aggravated the preexisting right knee disorder. After consideration of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against service connection for a right knee disorder. The weight of the evidence shows that a preexisting right disorder, which was "noted" at entrance into active service, did not increase in severity during active service. The evidence shows that the right knee disorder preexisted service, as a right knee abnormality was "noted" prior to service entrance. See June 1963 service preinduction examination report. Additionally, that the Veteran endorsed a history of a trick or locked knee on a June 1963 Report of Medical History, thus, the presumption of sound condition as it relates to a right knee disorder is not applicable. Because a preexisting right knee disorder was "noted" upon entrance to active service, service connection may be granted only if it is shown that the right knee disorder was aggravated by service, that is, if the preexisting right knee disorder was worsened in severity beyond its natural progression during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Where a disorder is noted on service entrance, 38 U.S.C. § 1153 applies, and the claim is one for aggravation by service. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service (presumption of aggravation), unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. In such claims of preexisting disability, the veteran (the evidence of record) bears the burden of showing that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only if this burden is met does the burden of proof shift to VA to prove non-aggravation (by clear and unmistakable evidence). The Board next finds that the weight of the evidence demonstrates that the preexisting right knee disorder did not increase in severity during active service beyond its natural progression, that is, was not aggravated by service. Service treatment records do not reflect any complaints, symptoms, treatment, or diagnosis of any right knee problems during service. Furthermore, a September 1967 service separation examination report shows the Veteran's lower extremities were found to be clinically normal, although the Veteran continued to endorse a history of a trick or locked knee on the corresponding September 1967 Report of Medical History. Such evidence does not indicate that there was a worsening of the right knee disorder beyond its natural progression during service. Post-service VA and private treatment records do not reflect treatment for any right knee problems until March 2004, when a March 2004 private treatment record reflects the Veteran had been diagnosed with right medial knee pain with medial knee arthritis and had undergone an unicompartmental arthroplasty and a diagnostic right knee arthroscopy. The record does not contain any competent medical opinion as to whether the preexisting right knee disorder increased in severity during service beyond its natural progression. For the foregoing reasons, the Board finds that the weight of the evidence demonstrates that the preexisting right knee disorder did not increase in severity during service beyond its natural progression - i.e., it was not aggravated by service; therefore, the criteria for service connection for a right knee disorder, based on aggravation in service, have not been met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. 4. Service connection for a cervical spine disorder 5. Service connection for a lumbar spine disorder The Veteran generally asserts that current cervical and lumbar spine disorders are the result of the physical stress endured during basic training. See August 2020 Board hearing transcript. At the outset, the Board finds that there are current diagnoses of stenosis in the cervical spine and foraminal stenosis in the lumbar spine. See January 2019 private treatment record; August 2018 private treatment record. After a review of all the evidence or record, lay and medical, the Board finds that the weight of the evidence shows no in-service cervical or lumbar spine injury, disease, or even symptoms of a cervical or lumbar spine disorder during service, including no chronic symptoms of arthritis during service. Service treatment records do not show any injury, complaints, symptoms, diagnosis, or treatment for cervical or lumbar spine pain, including no chronic symptoms of arthritis in the cervical or lumbar spine during service. A September 1967 service separation examination shows the Veteran's neck, spine, and other musculoskeletal systems were found to be clinically normal. On a corresponding September 1967 Report of Medical History, the Veteran denied symptoms or a history of arthritis or rheumatism, bone, joint, or other deformity, and recurrent back pain. The lay and medical evidence weighs against a finding of continuous symptoms of arthritis in the cervical or lumbar spine since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on presumptive avenues of "chronic" in-service symptoms, "continuous" post service symptoms, or arthritis to 10 percent within one year of service. As discussed above, neither the service treatment records nor the September 1967 service separation examination indicated any history or findings or diagnosis for arthritis in the cervical or lumbar spine, or any other problems with the cervical or lumbar spine. The earliest evidence of arthritis in the cervical spine is not indicated until 2019 in a January 2019 private treatment record diagnosing cervical spine stenosis. This evidence reflects the presence of arthritis nearly 52 years after service separation and nearly 51 years outside of the applicable presumptive period. Although the record reflects the Veteran reported a history of a cervical spine surgery as early as 2005, even finding that arthritis was present at that time, the evidence would still show the earliest presence of arthritis in the cervical spine approximately 38 years after service separation and approximately 37 years outside of the applicable presumptive period. The earliest evidence of arthritis in the lumbar spine is not indicated until 2018 in an August 2018 private treatment record diagnosing foraminal stenosis in the lumbar spine. This evidence reflects the presence of arthritis nearly 51 years after service separation and nearly 50 years outside of the applicable presumptive period. The earliest reported history of lumbar spine surgery is in 1993; even presuming that arthritis was present at that time, the evidence would still show the earliest presence of arthritis in the lumbar spine approximately 26 years after service separation and approximately 25 years outside of the applicable presumptive period. On the question of direct nexus between the current cervical spine and lumbar spine disorders and service, the Board finds that the preponderance of the lay and medical evidence is against a finding that the currently diagnosed cervical and lumbar spine disorders are causally related to service. In addition to the findings of no in-service injury, disease, or even cervical or lumbar spine symptoms suggestive of onset of injury or disease during service, the weight of the evidence also shows that the symptoms of the cervical spine and lumbar spine disorders had their onset after active service. The Veteran was not treated for arthritis in the cervical and lumbar spines until after service and was not diagnosed with arthritis in cervical spine until January 2019, was not diagnosed with arthritis in the lumbar spine until August 2018. For the foregoing reasons, the Board finds that the weight of the evidence is against the claims for service connection for a cervical spine disorder and a lumbar spine disorder on all service connection theories; therefore, the claims must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.