Citation Nr: 21022480 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 12-34 341 DATE: April 15, 2021 ORDER Entitlement to service connection for a low back condition is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to an initial increased rating in excess of 30 percent for PTSD with anxiety disorder NOS and depressive disorder NOS is remanded. FINDING OF FACT The preponderance of the evidence reflects that the Veteran's low back condition is not etiologically related to his active military service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to June 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues were last remanded in September 2020 and December 2019 for further development 1. Entitlement to service connection for a low back condition The appellant contends that the Veteran’s low back condition was related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has a low back condition that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran’s low back condition is related to his military service. In a December 2020 VA, medical examination, the examiner opined that the Veteran’s low back condition is less likely than not related to his military service. Noting the Veteran with degenerative arthritis of the spine; the examiner explained the condition is most likely a natural progression of aging and unlikely from active duty service. The examiner further noted that the Veteran’s current diagnosis was established in 2003, approximately 25 year post active service. The examiner additionally explained that service treatment records (STRs) do not contain treatment for, or complaints or a low back condition or injury to the back. The Board is cognizant of the Veteran’s report of in-service injuries to his back. The Veteran reported that he had, inter alia, backaches caused by reported stressors, including a report of being blown backwards on two separate occasions in the same evening) by an explosion during “night fire training” at a firing range. He reported he blacked out both times, and his helmet and boots were knocked off, and he was thrown to the ground. Importantly, the Veteran’s STRs confirm he was injured from an explosion on a 106 mm range complaining of tinnitus, burns, and headaches, and he was assessed with a post-concussive syndrome. However, the STRs do not make mention of the Veteran sustaining a back injury. The Board also notes that the Veteran has been inconsistent as to the onset of his back pain. A February 2002 VA treatment record documents the Veteran reported that he had back pain for three to four years prior and in March 2003, the Veteran reported that his back pain had been present intermittently since 1988. A March 2009 VA treatment record notes the Veteran reported he hurt his back working in maintenance, thus resulting in his unemployment since January 2008. In December 2011, the Veteran reported his back pain started in 1977 while injured on active duty. Thus, to the extent that the Veteran alleges having experienced back symptoms continuously since service, the Board finds that such allegations are not credible given the passage of many years between discharge from active service and the inconsistencies as noted above, as well as the medical documentation of a claimed disability. Notably, an August 1987 VA Hospital Summary report shows a physical examination showed no remarkable findings at that time. The Board finds it reasonable to conclude that if the Veteran was experiencing ongoing back pain at that time, he would have reported it. His silence as to the back is evidence against a finding that he was experiencing ongoing back symptoms as he was being discharged from service. Based on the above, the Board finds service connection for low back condition is not warranted. The Board notes that the Veteran may sincerely believe that he has a back condition causally related to active service. However, the most probative clinical etiology opinion with regard to the Veteran’s claimed condition is against such a finding. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexity of the claimed condition for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for GERD is remanded. The issue was remanded by the Board in December 2019 for further development. Specifically, the Board remanded the issues for a supplemental medical opinion to address whether the Veteran’s claim for service connection for GERD is related to his service-connected disabilities. The Veteran was provided a VA medical examination in December 2020. The examiner concluded that the Veteran does not have a diagnosis of GERD noting the Veteran’s denial of currently experiencing GERD symptoms. On the examination report, the examiner incorrectly noted “no” to the Veteran ever being diagnosed with an esophageal condition. During the pendency of the appeal the Veteran has complained of and has been treated for GERD. (See December 2020, April 2019, March 2018, and December 2012 VA treatment records). As the December 2020 medical opinion was based, at least in part, on inaccurate facts; it has no probative value in regard to the claim. See Reonal v. Brown. 5 Vet. App. 458, 461 (1993). As such an adequate supplemental medical opinion must be obtained prior to adjudicating the claim on appeal. 2. Entitlement to an initial increased rating in excess of 30 percent for PTSD with anxiety disorder NOS and depressive disorder NOS is remanded. The Board remanded the issue in September 2020. In October 2020 the RO granted the Veteran a 30 percent evaluation for PTSD with anxiety disorder NOS and depressive disorder NOS effective April 1, 1999. However, a review of the claims file reflects that prior to certification of the appeal to the Board, the Veteran was not provided a Supplemental Statement of the Case (SSOC) considering relevant records, to include VA mental health treatment records. As such, a remand is necessary for an SSOC to be issued in compliance with the February 2019 Board remand instructions. See 38 C.F.R. §§ 19.31 (providing that the AOJ will furnish an appellant and his or her representative an SSOC if it receives additional pertinent evidence after an SOC or SSOC has been issued and before an appeal is certified to the Board), 19.37. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board has considered the question of whether the Veteran would be prejudiced by considering the appeal for TDIU while remanding the other issues on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the outcome of the claims being remanded could have a significant impact on the Veteran’s appeal for entitlement to TDIU, the Board finds these matters inextricably intertwined. Thus, the issue for entitlement to TDIU must be remanded. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran’s GERD. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a. Whether it is at least as likely as not that, at any point since the pendency of the claim, the Veteran has carried a valid diagnosis of GERD. In doing so, the clinician must address the notations of GERD in the records, to include December 2012, March 2018, April 2019, and December 2020 VA treatment records. b. Whether it is as likely as not (a probability of 50 percent or greater) that any current GERD had its origin in service or is related to the Veteran’s active service. c. Whether it is as least as likely as not that any current GERD was caused by the Veteran’s service-connected psychiatric disability. d. Whether it is as least as likely as not that any current GERD was aggravated beyond its natural progression by the Veteran’s service-connected psychiatric disability. e. Whether it is at least as likely as not that the Veteran’s service-connected psychiatric disability caused him to become obese, including by preventing exercise. f. Whether it is at least as likely as not that the Veteran’s obesity was a substantial factor in causing his GERD. g. Whether it is at least as likely as not that the Veteran’s GERD would not have occurred but for obesity caused by his service-connected psychiatric disability. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. A December 1976 service treatment record noting the Veteran’s report of epigastric pain leading to upper abdominal pain. b. A November 1977 service treatment record noting that the Veteran’s episode of abdominal pain in December 1976 was “rather severe” and that a “diagnosis of an acute abdomen was entertained but the symptoms rapidly subsided and further intervention and investigation did not take place.” c. A VA treatment record from April 2000 diagnosing GERD. d. An April 2019 VA treatment record including a current diagnosis of GERD. e. Treatise evidence submitted by the Veteran in August 2019 regarding a relationship between GERD and anxiety and depression, as well as between psychosocial stress and weight and between obesity and GERD. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Readjudicate the claims. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. Sarah Campbell Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brandon A. Williams, 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.