Citation Nr: 21063288 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-47 056 DATE: October 13, 2021 ORDER Entitlement to service connection for a lower back condition is granted. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for prostate cancer is remanded. FINDING OF FACT The Veteran's lower back disability is at least as likely as not etiologically related to his active-duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a lower back condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1988 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2013, October 2014, and January 2015 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In November 2020, the Veteran submitted a motion to the Board to advance his case on the docket under 38 C.F.R. § 20.900(c) based on financial hardship. Under 38 C.F.R. § 20.900(c), a case may be advanced on the Board's docket for several reasons, to include as due to serious financial hardship. In the instant case, the Veteran during his May 2021 Board hearing indicated that he is no longer in need of assistance. As such, the Veteran has not shown that his current financial problems are serious enough to warrant that his case be advanced on the docket. Accordingly, the motion to advance the case on the docket is denied. Service ConnectionLegal Criteria 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 present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lower Back The Veteran seeks service connection for a lower back disability which he contends originated in service. The medical evidence confirms that the Veteran has current diagnoses of back strain and chronic back pain. See July 2013 VA Back Conditions examination. The central issue that must be resolved is whether the Veteran's current disabilities originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran's service treatment records (STRs) contain complaints of, and treatment for, lower back pain. Most notably, the Board identifies a July 1991 treatment record wherein the Veteran complained of low back pain for two weeks following an injury he sustained lifting wall lockers. The Veteran was provided with an August 2013 VA Back conditions examination. The examiner noted that the Veteran was diagnosed with back strain and back pain and that his diagnosis went back to 1991. The Veteran reported that he experienced back pain since his injury in 1991 which he treats with ibuprofen, naproxen, and other NSAIDs. The examiner does not provide an etiological opinion, and instead noted that it would be mere speculation to causally link the Veteran's current back condition to his service. The rationale provided was that while there was no other injury documented, there was a lack of documented treatment records following the Veteran's separation from service. However, the examiner indicated that the Veteran was currently experiencing pain which was related to his currently diagnosed disability. The Veteran has provided several lay statements throughout the record indicating that he injured his back moving wall lockers in service, and that he has continued to experience pain since that initial injury. Additionally, during the Veteran's May 2021 Board hearing he testified that he injured his back in service when a wall locker fell on him while he was moving it. The Veteran continued that he went to the infirmary, was given ibuprofen, but it did not alleviate his pain; and that his back pain has persisted since service. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The VA examiner's opinion was based on a lack of evidence of chronicity of care and a lack of treatment records documenting pain from service to present day. However, the Board notes, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. at 496. As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. Further, the Board notes that the examiner did not discuss the Veteran's competent lay statements addressing his lower back pain from service to present day. Therefore, the medical opinions that are based on a lack of review of the entire treatment record regarding the Veteran's low back and is of limited probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the Board may afford weight to an opinion based on factors such as reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case). Additionally, the VA examiner acknowledged that the Veteran was experiencing low back pain, that the pain was related to his current condition, and that the Veteran's pain began in 1991 while the Veteran was in active-duty service. The Board has considered the Veteran's lay statements in support of his claim. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that he experienced low back pain since he was injured in service, which has persisted and progressively worsened ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran's lay statements are consistent with other medical evidence in the record. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ongoing pain to be at least as probative as the above-noted VA examiners' findings, as the Veteran is truly the only person capable of such observation. Given the evidence discussed above, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran's low back disability is at least as likely as not etiologically related to his active-duty service. The evidence is thus at least evenly balanced as to whether the Veteran's current low back disability is related to the in-service reports of, and treatment for, his lower back. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a low back disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Headaches and CFS The Board notes that the record for review may be incomplete. In the Veteran's May 2021 Board Hearing the Veteran testified that he sought medical treatment for his claimed disabilities from private treatment providers following service but prior to starting his care at the VA. As these records may contain information that is pertinent to the Veteran's claims on appeal, the RO must attempt to obtain/locate these treatment records. Acquired Psychiatric Disability While the Veteran was provided with a July 2017 Mental Disorders examination, the Board finds it to be inadequate for adjudication purposes. While the examiner diagnoses the Veteran with alcohol use disorder and other specified personality disorder, the examiner does not provide an etiological opinion regarding these conditions. Further, other than indicating that the Veteran does not meet the criteria for a diagnosis of post-traumatic stress disorder (PTSD) under the DSM-5 criteria the examiner does not discuss the Veteran's treatment records which document prior diagnoses and treatment for PTSD which were related to his in-service combat stressors. The Board acknowledges that these diagnoses may have been under the DSM-IV, see Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (Mar.19, 2015) (noting that effective August 4, 2014, the diagnosis of a mental disorder must conform to DSM-5, not DSM-IV), however, the current medical opinion did not discuss whether the Veteran's current diagnoses were related to his conceded stressors. Additionally, the Veteran's December 2016 CFS exam indicated that the Veteran may also have a diagnosis of depression. As such, the Board finds a new VA examination and medical opinion is required to address exactly what psychiatric conditions the Veteran is diagnosed with, and whether any of these diagnoses are at least as likely as not etiologically related to his active-duty service, to include his conceded combat stressors. Prostate Cancer While the Veteran was provided with a December 2016 VA examination regarding the etiology of his prostate cancer disability the Board finds it inadequate for adjudication purposes. In proffering an opinion, the examiner opined that the Veteran's prostate cancer was less likely than not etiologically related to his in-service immunizations. However, the examiner did not opine on whether the Veteran's prostate cancer was etiologically related to his environmental exposures experienced during his Southwest Asia service. Additionally, in his opinion, the examiner relied on the Veteran's family history of prostate cancer as part of their negative rationale. However, throughout the record, including in his May 2021 Board hearing, the Veteran has testified that he has no family history of prostate cancer, and that he is the only member of his family to be diagnosed with prostate cancer. As such, the Board finds an additional examination and medical opinion is required to determine the etiology of the Veteran's claimed prostate cancer. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's issues on appeal. Specifically, the RO should attempt to obtain/locate his complete private treatment records discussed by the Veteran in his May 2021 Board hearing. If needed, the RO should contact the Veteran and ask him to better identify and/or submit the records. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran's claimed psychiatric disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner must provide opinions as to the following: a) The examiner should identify and list all current psychiatric disorders, including whether the Veteran meets the criteria for a diagnosis of PTSD or unspecified depressive disorder. If a diagnosis of PTSD is not established based on the DSM criteria, the examiner should discuss the diagnoses of PTSD found throughout the record. If PTSD is diagnosed, the underlying stressor must be identified. b) For each psychiatric disorder identified the examiner must opine whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed psychiatric disabilities originated during the Veteran's period of active duty service or are otherwise etiologically related to his active duty service. This is to specifically include whether they are etiologically related to his conceded in-service combat stressors. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Finally, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran's claimed prostate cancer disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether the Veteran's claimed prostate cancer at least as likely as not (a 50 percent probability or greater): originated during his period of active service or is otherwise etiologically related to his active service. The examiner must specifically opine whether the Veteran's claimed prostate cancer at least as likely as not (a 50 percent probability or greater) was etiologically related to his claimed immunizations, or whether it was etiologically related to his Southwest Asia environmental exposures. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. The Board specifically notes that the Veteran has reported no family history of prostate cancer. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.