Citation Nr: 21077363 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-35 520 DATE: December 29, 2021 ORDER Service connection for a left shoulder disability is granted. Service connection for a low back disability is granted. Service connection for psoriasis affecting the bilateral upper and lower extremities is granted. REMANDED Service connection for an acquired psychiatric disorder, claimed as bipolar disorder and posttraumatic stress disorder (PTSD), is remanded. Service connection for bilateral lower extremity radiculopathy, as secondary to the service-connected low back disability, is remanded. VETERAN'S CONTENTIONS The Veteran contends that he should be granted service connection for his left shoulder, low back, psoriasis, and psychiatric disabilities. See November 2014 VA 21-526EZ. The Veteran stated that he injured his left shoulder while replacing a starter on a dump truck during service. See August 2021 Board Hearing Trans. pg. 4. Additionally, the Veteran stated that he initially strained his lower back while wrangling a generator and continued to re-aggravate his back injury working on vehicles, during service. Id. at 7. Regarding his skin disorder, the Veteran explained that he was diagnosed with psoriasis in 1977, but did not have psoriasis prior to active duty. Id. at 12. Lastly, the Veteran explained that he believed that his psychiatric disabilities were aggravated by service. Id. at 5. FINDINGS OF FACT 1. The Veteran's left shoulder disability, currently manifested by pain, stiffness, and weakness, had its clinical onset during service. See August 2021 Board Hearing Trans. pg. 4; see also, August 2016 Private Medical Record. 2. The Veteran has experienced a chronic low back disability, manifested by low back pain, since service. See August 2021 Board Hearing Trans. pg. 9. 3. The Veteran has experienced a chronic skin disability affecting his bilateral upper and lower extremities, currently diagnosed as psoriasis, since service. See June 2012 Private Medical Record and August 2021 Board Hearing Trans. pg. 9. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a skin condition are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to December 1977 and March 1980 to April 1980. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on his June 2017 VA Form 9. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). After reviewing the evidence of record, the Board finds that service connection for is warranted in the instant case for the Veteran's left shoulder disability, low back disability, and skin condition. Left Shoulder Disability Turning to the evidence of record for the Veteran's left shoulder disability, the Board finds that the Veteran's left shoulder disability was confirmed by the December 2015 private treating physician. See December 2015 Private Treatment Record (diagnosing degenerative changes of the acromioclavicular joint and a partial thickness tear of the supraspinatus tendon). Next, turning to in-service incurrence, the Board finds that the Veteran sustained a left shoulder injury during active duty. As noted in November 2015 correspondence, the Veteran's service treatment records and complete military personnel records are unavailable. See November 2015 VA 21-3101. Under such circumstances VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the appeal is undertaken with this duty in mind. The cited case law does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). To that end, the Veteran reported that he injured his left shoulder when he replaced a starter on a dump truck. Id. Additionally, the Veteran's military personnel records show that the Veteran's military occupational specialty code (MOS) was combat engineer and mechanic. See DD 214 Certificate of Release or Discharge from Active Duty. Also, an August 1981 service treatment record (STR) shows that he was treated for a left arm muscle strain. See August 1981 STR. Here, the Board finds that the Veteran is credible to report the in-service incurrence of a left shoulder injury. See August 2021 Board Hearing Trans. pg. 4. Because the left shoulder injury is credible and consistent with the places, types, and circumstances of the Veteran's service as a mechanic, The Board finds that the Veteran's account of his injury is of significant probative value. 38 U.S.C.A. § 1154(a). Further, as a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including discussing his continuous symptoms of experiencing left shoulder pain, stiffness, and weakness since the in-service injury. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also, August 2016 Private Medical Record. The Board finds the Veteran's reports of the onset of his symptoms in service, and continuous symptoms of left shoulder pain and functional limitations since his service to be credible in the instant case. Lastly, regarding a link between the Veteran's left shoulder disability and service, the Board finds that, as reported by the Veteran, his left shoulder pain began in service and has continued to the present. See August 2021 Board Hearing Trans. pg. 2. Additionally, as stated above, the Veteran is competent to identify his continuous left shoulder pain and functional limitations since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno, 6 Vet. App. at 465. Based on the Veteran's lay testimony and the evidence of record, the Board finds each of element of service connection is met. Accordingly, service connection for the Veteran's left shoulder disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Low Back Disability Turning to the evidence of record for the Veteran's low back disability, the Board first notes that the Veteran has a current low back disability. Here, the Board finds that the available medical records do not provide a specific low back diagnosis, however, the Board finds that the criterion of a current disability has been satisfied when considering Saunders v. Wilkie. Saunders, 886 F.3d 1356 (Fed. Cir. 2018). Specifically, the Veteran reported that he was diagnosed with sciatica. See August 2021 Board Hearing Trans. pg. 9. Additionally, in Saunders, the Federal Circuit held that pain alone, when causing functional impairment, may constitute a "disability" for VA compensation purposes, even if the pain is not with an accompanying diagnosis. Id. at 1368. Furthermore, a disability for VA compensation purposes refers to an impairment of earning capacity due to a disease or injury, rather than to a disease or injury itself. See Allen v. Brown, 7 Vet. App. 439 (1995). Here, the Veteran's private medical records show that he was treated for chronic back pain that radiated bilaterally to his lower extremities. See June 2014 Private Medical Record. Further, the Veteran's private treatment records show that he experienced low back pain with gait disturbance, lower extremity weakness, and numbness in his lower extremities. See February 2014 Private Medical Record. Therefore, the Board finds that the Veteran's low back pain has resulted in impairment sufficient to meet the criteria for a 10 percent disability rating, specifically diagnosed as a backache, unspecified. See October 2012 Private Medical Record. Next, turning to the in-service incurrence element, the Board finds that the Veteran has credibly testified that his low back disability began during service. As noted above, due to the lack of service treatment records and service personnel records, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt, 2 Vet. App. 83, 85 (1992); O'Hare, 1 Vet. App. 365, 367 (1991). To that end, the Veteran reported that he injured his lower back during service, when he was wrangling a generator in service. See August 2021 Board Hearing Trans. pg. 7. The Veteran also reported that he re-injured his back during service, when he would lean over and work on the vehicles. Id. Based on the Veteran's testimony, the Board finds that the Veteran sustained a low back injury during service. Id. Because the Veteran's MOS was a mechanic, the Board finds that the Veteran's lay statements are credible and consistent with the places, types, and circumstances of the Veteran's service. As such, the account of his injury is deemed of significant probative value. 38 U.S.C.A. § 1154 (a), see also, DD 214 Certificate of Release or Discharge from Active Duty. Further, as a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including discussing his continuous symptoms of experiencing lower back pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's reports of the onset of his symptoms in service, and continuous symptoms of lower back pain since his service to be credible in the instant case. Lastly, regarding a link between the Veteran's low back pain and service, the Board finds that, as reported by the Veteran, his low back pain began in service and has continued to the present. See August 2021 Board Hearing Trans. pg. 9. Additionally, as stated above, the Veteran is competent to identify his continuous low back pain since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno, 6 Vet. App. at 465. Based on the Veteran's lay testimony and the evidence of record, the Board finds each of element of service connection is met. Accordingly, service connection for the Veteran's low back disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Skin Disability Turning to the Veteran's skin disability, the Board finds that service connection for Veteran's skin disability is warranted. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A pre-existing 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, 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(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). 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. See Id. Under 38 U.S.C. § 1153, a veteran "bears the burden of showing that his preexisting condition worsened in service" and "[o]nce the veteran establishes worsening, the burden shifts to [VA] to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease." See Horn v. Shinseki, 25 Vet. App. 231 (2012). Stated differently, a "veteran must initially establish only that a preexisting condition worsened during the period of active duty, and at that point the veteran has the benefit of the presumption of aggravation." See Smith v. Shinseki, 24 Vet. App. 40 (2010). If VA cannot show by clear and unmistakable evidence that the worsening of the preexisting condition was due to the natural progress of the disease, then "the increase is presumed to have been caused by active-duty service." See Id. At the outset, the Board notes that the Veteran's June 1977 Report of Medical History noted psoriasis on the Veteran's elbows and knee; however, the Veteran competently testified that he did not have psoriasis prior to service, but it was diagnosed during basic training. See August 2021 Board Hearing Transcript pg. 9. In addition to his testimony, the November 1977 medical examiner noted mild psoriasis. See November 1977 STR. Further, there was no physical profile noted at entrance. Id. Therefore, based on this medical evidence and the Veteran's testimony, the Board finds that the Veteran did not have a pre-existing skin disability prior to enlistment. Next, the Board finds that the Veteran has a current skin disability. See December 2015 VA Medical Examination and August 2021 Board Hearing Transcript pg. 9. Specifically, the Veteran reported that he has experienced chronic since skin condition, diagnosed as psoriasis, since service. Id. Moving next to in-service incurrence of the Veteran's skin disability, the Board finds that the Veteran's contentions regarding his in-service diagnosis are competent and credible. Specifically, the Veteran stated that he was first diagnosed with psoriasis during basic training. See August 2021 Board Hearing Transcript pg. 9. In construing the Veteran's statements liberally coupled with his June 1977 STRs, the Board finds that the service incurrence element is met. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moving to nexus between the current the diagnosis and service, the Board finds that the Veteran's current skin disability is related to service. Additionally, the Veteran also reported that his skin condition appears to be the same condition as the one he experienced in service. Id. In support of this determination, the Board relies upon the Veteran's competent testimony regarding his chronic skin condition since service. Thus, the Board finds that the Veteran is competent to report his in-service condition and continuous symptoms since service and that a nexus has been established. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that lay evidence may be sufficient to establish nexus in certain cases). The Board acknowledges that the December 2015 VA examiner's determination that the Veteran's skin disability was less likely than not related to service. In support of this determination, the examiner found psoriasis pre-existed service and it was not chronic at separation. The examiner also stated that the Veteran did not have experience any additional symptoms at separation. However, the Board finds that this opinion is inadequate because it is based on inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). As stated above, the Veteran did not have a pre-existing skin condition, and due to the incomplete nature of the Veteran's service records, the Board finds that the examiner's conclusion was not based on a full factual predicate. Therefore, this opinion is inadequate for adjudication purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board finds that service connection for the Veteran's skin disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS FOR REMAND 1. Acquired Psychiatric Disorders After reviewing the evidence of record, the Board finds that a remand is warranted for a VA mental health examination. The VA must provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for finding that the disability may be associated with service is low. Id. A Veteran is competent to report his observable symptoms and history, including the onset and timing of symptoms, and such reports must be considered. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran's post-service treatment records show that he was diagnosed with bipolar disorder. See October 2012 Private Treatment Record. Additionally, the Veteran testified that the war simulations from basic training aggravated his pre-existing psychiatric disability. See August 2021 Board Hearing Trans. pg. 5. Relatedly, the Veteran's private psychiatric treatment records note that the Veteran reported being abused by his father. See September 2014 Private Psychiatric Record. Further, the Veteran asserted that he was diagnosed with PTSD and that his in-service stressor occurred during basic training. See August 2021 Board Hearing Trans. pg. 3. Specifically, the Veteran reported that he was picked on by his commanding officer during basic training. Id. As the record evidence tends to show that the acquired psychiatric conditions either had their onset during service, were aggravated during service, or are otherwise related to service, the Board finds that the Veteran should have been afforded a VA examination. Accordingly, the Board finds that the issue of service connection for the Veteran's psychiatric disorder must be remanded to obtain a VA examination. See, McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also, 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examiner should determine whether the Veteran's psychiatric conditions pre-existed service or had their clinical onset in service. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his acquired psychiatric disabilities. See, Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). 2. Bilateral Lower Extremity Radiculopathy After reviewing the evidence of record, the Board finds that a remand is warranted for a VA examination to determine whether his radiculopathy symptoms are related to his service-connected low back disability. Specifically, the Veteran's post-service treatment records for his low back disability show that he reported pain that radiated to his thighs bilaterally and that he experienced weakness and numbness in his lower extremities. See June 2014 and February 2014 Private Treatment Records. Therefore, the Board finds that a VA examination is necessary to determine whether the Veteran's service-connected low back disability has caused and/or aggravated his bilateral lower extremity radiculopathy. In Morgan v. Wilkie, the Court of Appeals for Veterans Claims (Court) held that the "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." 31 Vet. App. 162, 167 (2019). In doing so, the Court held this included secondary service connection. Id; see also Long v. Wilkie, 33 Vet. App. 167 (en banc) (2020); Bailey v. Wilkie, 33 Vet. App. 188 (2021). Further, the Court held in Grimes v. McDonough that a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream, regardless of whether the claim is initially granted or denied by the RO. Grimes v. McDonough, 2021 U.S. App. LEXIS 18-1017, *8-11 (Fed. Cir. Apr. 28, 2021). Moreover, a claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App 1, 5 (2009). Accordingly, the Board finds that a VA examination is warranted to determine whether the Veteran's bilateral lower extremities are related to his service-connected low back disability. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his bilateral lower extremity radiculopathy disability. See, Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his acquired psychiatric disorders. The Veteran's claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. For all diagnosed conditions: a. Please state whether the diagnostic criteria for an acquired psychiatric condition are met. b. Opine as to whether any diagnosed psychiatric disability clearly and unmistakably (is medically undebatable) pre-existed the Veteran's entrance into service. If so, please identify the specific disorder and the evidence that supports such conclusion. c. If there is clear and unmistakable evidence that the psychiatric disorder(s) pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. d. If there was an increase in the severity of the Veteran's disorder(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. e. If the psychiatric disorder did not clearly and unmistakably pre-exist service, please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service. Please explain why or why not, specifically discussing whether the prodromal period for any diagnosed psychotic disorder as likely as not had its onset during the Veteran's period of service in light of the statements he provided regarding the onset of his mental health condition. 2. Then schedule the Veteran for a VA examination to determine the nature and etiology of any neurological disability affecting his bilateral lower extremities. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported, to include EMG or NCS testing. If EMG or NCS testing is deemed not appropriate, the examiner should specifically state why such testing is not necessary. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: (a.) Diagnose all neurological disabilities affecting the bilateral lower extremities. Specifically, state whether the Veteran has neurologic symptoms and/or impairment attributable to his service-connected low back disability, with consideration of February 2014 and June 2014 private medical records. (b.) For any neurologic disability found, state whether it is at least as likely as not (i.e. a 50 percent of greater probability) that such condition was caused by service-connected low back disability. (c.) For any neurologic disability of the lower extremities that was not caused by low back disability, state whether it is at least as likely as not (i.e. a 50 percent of greater probability) that the condition underwent an incremental increase (aggravated), regardless of permanence, by service-connected low back disability. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. For the purpose of providing the opinion(s) requested, please accept as valid the statement that his psychiatric disorders were aggravated by events during basis training, and state whether a nexus between the Veteran's psychiatric disorders and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements) Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.