Citation Nr: 21013631 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-61 399 DATE: March 10, 2021 ORDER Service connection for vertigo is denied. Service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is denied. A disability rating in excess of 20 percent for a thoracic spine disability is denied. FINDINGS OF FACT 1. The Veteran’s vertigo disorder did not have its onset in, and is not otherwise related to, his military service. 2. The Veteran’s acquired psychiatric disorder is not related to his military service or caused or aggravated by any service-connected disability. 3. The Veteran’s thoracic spine disability is manifested by no more than subjective complaints of pain and stiffness without objective evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less, or total motion of the thoracolumbar spine to less than 120 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for a rating in excess of 20 percent for a thoracic spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1984 to April 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. They were previously before the Board in December 2018, at which time they were denied. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claim (Court). In September 2019, the Court granted a Joint Motion for Partial Remand (JMPR) on the basis that the Board erred in its December 2018 decision by relying on inadequate VA examination reports, and vacated those parts of the December 2015 decision. The claims subsequently returned to the Board in April 2020, at which time they were remanded to the RO to provide the Veteran with new VA examinations, in accordance with the JMPR. Those examinations have been completed. Thus, the Board finds that there has been substantial compliance with its remand instructions, and it may proceed with the claims on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Finally, the Board notes that a claim for service connection for a migraine headache disorder, which was originally denied in the December 2018 Board decision and subsequently remanded with the claims herein by both the Court and the Board, was granted in full in a September 2020 rating decision and is no longer before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 - 67 (Fed. Cir. 2004). Service connection may also be granted for any or 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 may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Vertigo The Veteran asserts that he experienced chronic dizziness throughout his active duty service, and therefore service connection is warranted. His service treatment records show three separate incidents in which he was treated for symptoms which included dizziness. In an undated note, he was treated for headaches and dizziness. A December 1984 record noted complaints of dizziness and headaches. In an August 1989 note, the Veteran was seen for a head cold; at that time, he reported headaches, congestion and dizziness. In September 2020, the Veteran underwent a VA examination. At that time, a diagnosis of benign paroxysmal positional vertigo (BPPV) was confirmed. On the question of nexus, the examiner determined it was less likely than not that the Veteran’s vertigo had its onset in service. She acknowledged the in-service treatment for dizziness on three occasions, and the Veteran’s description of the symptoms he experienced in service, but determined that these symptoms were more aligned with motion or seasickness, and not with his diagnosed BPPV. She noted that there was no objective evidence to support a chronic vertigo condition in service or in close proximity to service. The Veteran’s first diagnosis of vertigo was in 2013, over 20 years following separation. She explained that the Veteran’s description of his current symptoms, such as an onset with change of position (such as from laying down to sitting up) was consistent with BPPV. Based on this evidence, the Board finds that the Veteran’s claim for service connection must be denied. The Board accords great probative weight to the opinion proffered by the September 2020 VA examiner. The examiner provided a rationale, relying on and citing to the records reviewed. Moreover, she offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly-reasoned opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no contrary medical opinion of record. To the extent that the Veteran himself asserts that his diagnosed vertigo is a result of his military service, the Board does not question the Veteran’s sincerity in his belief that it is etiologically related to such. While he is certainly competent to provide information regarding symptoms and a medical history, there is no indication that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as a medical diagnosis or causation. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, the Board accords his statements regarding the nature and etiology of his vertigo no probative weight. Even if the Veteran was competent to provide an etiological opinion, which laypersons are able to do in some instances, the Board finds that the reasoned conclusion of the VA examiner is more probative than the Veteran’s assertions. The medical professional has the training, experience, and expertise that the Veteran is not shown to have. As such, his opinion is outweighed by the opinions provided by the September 2020 VA examiner. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s service connection claim for vertigo. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Psychiatric Disorder At the outset, the Board notes that while the Veteran initially filed his psychiatric claim as one for service connection for PTSD, he has consistently failed to meet the criteria for a PTSD diagnosis and his claim has been expanded to include all diagnosed psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). The Veteran asserts that he developed a psychiatric disorder due to what he characterized as constant verbal abuse and threats from his staff sergeant. In addition, he has submitted evidence in support of a claim that his psychiatric disorder is aggravated by his service-connected disabilities. In a December 2018 medical opinion, received by VA in June 2019, Dr. C.L., a private psychiatrist, diagnosed the Veteran with adjustment disorder with mixed disturbance of emotions and conduct. She concluded that there was no other diagnosed disorder present. The condition was marked by symptoms such as a depressed mood, anxiety, and panic attacks. Dr. C.L. concluded that the Veteran’s adjustment disorder was more likely than not a “continuation of, related to, secondary to, or aggravated by his…service-connected disabilities” of the back and feet. In support of this conclusion, Dr. C.L. simply reiterated that the Veteran’s adjustment disorder was “reported and recognized” as secondary to the service connected conditions, without further detail or explanation. In an August 2020 VA examination report, a VA psychologist diagnosed the Veteran with Major Depressive Disorder and Generalized Anxiety Disorder, and noted the Veteran first became depressed in 1997 following the death of his father. He recounted a long history of violence against his wife and a sister. The Veteran recently lost money in a pyramid scheme and had money concerns. In June 2020, he injected himself with kerosene to prevent a Covid infection, feeling that he had been instructed to do so by the President of the United States; he denied this was a suicide attempt, but was hospitalized nonetheless. Prior to this incident, he last sought treatment for mental health disorders in 2016. Per the Board’s instructions, the psychologist was asked to discuss the Veteran’s assertions that he developed a mental health disorder following in-service confrontations with his sergeant. The examiner discussed the incident with the Veteran and determined that it did not meet the criteria for PTSD. In addition, the Veteran’s symptoms did not meet the criteria for PTSD. On the question of a nexus between the Veteran’s diagnosed mental health disorders and service, the psychologist determined it was less likely than not that they were due to an in-service injury, event or illness. As rationale, she concluded that the Veteran’s diagnoses of Major Depressive Disorder and Generalized Anxiety Disorder began many years after service, when his father passed away and a marriage broke up. His anxiety became more pronounced due to financial issues and interpersonal conflicts. She determined that, based on a review of the record and her interview with the Veteran, there was no evidence that the symptoms first manifested in service or were otherwise attributable to such. Similarly, on the question of a nexus between the Veteran’s service-connected back disability and his psychiatric disorders, the examiner again determined that it was less likely than not that there was a connection, or any aggravation. She pointed to other factors that were responsible for his mental health disorders, finding that a back disability was not one of them. Rather, she noted that the Veteran indicated it was his knees which caused him the most problems. In an October 2020 addendum report, the psychologist was asked to address any aggravation of the Veteran’s mental health disorders by his service-connected bilateral pes planus, as noted by Dr. C.L. in her December 2018 report. The psychologist acknowledged the private psychiatric opinion, but concluded that there was no aggravation of the Veteran’s disorders by his bilateral pes planus. She explained that in her examination, the Veteran did not acknowledge or report any distress related to pain or feet problems. Thus, with an absence of any association between the two, aggravation could not be found. The Board affords great probative weight to the August 2020 opinion and its October 2020 addendum, as the opinions contain detailed rationale for their respective conclusions that the Veteran’s diagnosed psychiatric condition was not due to service, or aggravated by his service-connected disabilities. See Nieves-Rodriguez, supra; Stefl, supra. The examiner also discussed the Veteran’s lay assertions and arguments concerning the origin of his psychological disorder in her well-detailed analysis. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In contrast, the Board finds that Dr. C.L.’s opinion lacks probative weight on the question of whether the Veteran’s had a diagnosed psychiatric disorder which was aggravated by his service-connected disabilities. She provided absolutely no rationale for her conclusion. See Nieves-Rodriguez, supra; Stefl, supra. As the opinion is generalized and lacks specific detail in its conclusion, the Board affords the August 2020 VA addendum opinion more probative weight on the question of aggravation. The Board notes that while the Veteran alleges that his acquired psychiatric disorder is due to military service, as a layperson without any medical training and expertise, he is not qualified to render a medical opinion about the etiology of a psychiatric disorder. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Unlike disabilities that may be observable as to their incurrence and their cause, such as a dislocated shoulder, the cause of a psychiatric disorder is not readily apparent to lay observation, and psychiatric diagnoses are generally the province of medical professionals. See Clemons, supra (“[i]t is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Thus, the Board finds that the Veteran is not competent to diagnose the onset or cause of his acquired psychiatric disorder. After careful consideration of the lay and medical evidence of record, the Board finds that the evidence is against a finding that the Veteran’s psychiatric disorder is in any way related to his military service. 38 C.F.R. § 3.303. In reaching such a conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. Increased Rating Back Disability The Veteran seeks a higher disability rating for his service-connected thoracic spine disability. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA examinations of joints are required to record a veteran’s relevant joint’s active and passive ranges of motion, and to test a veteran’s relevant joint for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, to conduct similar tests on a veteran’s opposite, undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). VA regulations and governing case law anticipate that examiners will offer opinions regarding additional functional loss due to flare ups, including estimates of additional loss of range of motion in degrees where appropriate, and that the Board shall ensure that examiners have evaluated all procurable and assembled information before determining that such estimates cannot be made. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of a matter. VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert, supra. A lumbar spine disability is among the disabilities rated under the General Rating Formula for Diseases or Injuries to the spine based on the limitation of motion; effects on posture or gait; or other manifestations such as the abnormal curvature of the spine itself. Associated objective neurologic abnormalities are rated separately. Normal range of motion for the thoracolumbar spine consists of: forward flexion of zero to 90 degrees, extension of zero to 30 degrees, left and right lateral flexion of zero to 30 degrees, left and right lateral rotation of zero to 30 degrees, and a combined total range of motion of 240 degrees. The combined range of motion is determined by adding together the ranges of motion for forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Diagnostic Codes 5235-5243. There is an alternative formula for rating intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that the Veteran’s thoracic spine disability is rated under this code. However, as the medical evidence of record contains no evidence or suggestion that the Veteran has ever been diagnosed with IVDS at any point during the appeal period, this code is inapplicable and does not warrant further discussion. The Veteran’s lumbar spine disability is currently rated 20 percent disabling. VA assigns a 20 percent disability rating where a lumbosacral strain results in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. VA assigns a 40 percent rating where a lumbosacral strain results in limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. VA assigns a 50 percent disability rating where a thoracolumbar strain results in unfavorable ankylosis of the entire thoracolumbar spine. Finally, VA assigns a 100 percent disability rating where a thoracolumbar strain results in unfavorable ankylosis of the entire spine. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. VA treatment notes from the appeal period show the Veteran experienced chronic low back pain. In September 2020, the Veteran underwent a VA back conditions examination. A diagnosis of degenerative arthritis of the spine was confirmed, and the Veteran’s thoracic spine 7th and 8th vertebrae with compression fracture and lumbar mechanical low back pain were noted. The Veteran described symptoms such as daily pain, and difficulty when standing up from a seated position. He indicated that he experienced tingling in the fingers of his right hand which he believed was due to his back. The Veteran treated his disability with over the counter medication and creams. The Veteran denied experiencing flare-ups. Range of motion testing showed forward flexion to 40 degrees, with extension to 15. Right and left lateral flexion were both at 20 degrees, with right and left lateral rotation to 30. The examiner concluded that the Veteran’s range of motion did not contribute to a functional loss, although pain did. The examiner estimated that this pain caused functional loss that would manifest as a loss of 5 degrees of motion in all spheres. The Veteran exhibited pain on forward flexion, extension, right and left lateral flexion and right and left lateral rotation. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions, without additional loss of function or range of motion. Flare-ups were absent. The Veteran experienced muscle spasm which resulted in abnormal gait or abnormal spine contour. The examiner noted a loss of motion that increased with forward flexion and bending. Muscle strength was normal, without atrophy. Impairments such as radiculopathy or neurological abnormalities due to the thoracic spine disability were absent. There was no ankylosis of any kind. The examiner confirmed a lack of an IVDS diagnosis. It was noted that the Veteran used a cane on a regular basis to assist with locomotion. There were no other pertinent physical findings, complications, conditions, signs or symptoms, to include scars, which were related to the Veteran’s disability. The examiner explained that the tingling in the Veteran’s right hand was due to a cervical spine condition and not his thoracic spine disability. Based on this evidence, the Board finds that the symptoms of the Veteran’s lumbar spine disability do not meet the criteria for a rating in excess of 20 percent. In order to meet the criteria for the next highest disability rating, the evidence would have to show either limitation of forward flexion to 30 degrees or less or favorable ankylosis of the thoracolumbar spine. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The results of the examination above documents that the Veteran has always had more flexibility in his thoracolumbar spine than contemplated by the 40 percent criteria during the appeal period. Id. Further, the muscle spasm which resulted in abnormal gait or abnormal spine contour experienced by the Veteran is contemplated by the 20 percent rating. The Board has also considered the special considerations applicable to rating disabilities under Correia and DeLuca as well as the regulations that those cases interpret. However, while these considerations can help in understanding a Veteran’s overall disability picture, the appropriate rating assigned is still that set forth in the schedule. Thompson, supra. Further, while the Veteran, as a layperson, is competent to report the symptoms he has experienced, he has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability for his thoracic spine disability in accordance with the rating criteria. See Layno, supra; Jandreau, supra. Such competent evidence concerning the nature and extent of the Veteran’s lumbar spine disability has been provided by the above findings, which directly address the criteria under which his thoracic spine disability is evaluated. The Board finds the findings of the VA examiner to be competent, objective, and probative evidence of record, and are therefore accorded greater weight than the Veteran’s subjective complaints of symptomatology for his disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for a thoracic spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. The claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.