Citation Nr: 21022674 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-52 356 DATE: April 19, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a left inguinal hernia is denied. Entitlement to service connection for a psychiatric disorder is denied. REMANDED Entitlement to service connection for a deviated nasal septum is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability did not originate in service or within one year thereafter and is not otherwise etiologically related to service. 2. The Veteran’s hernia disability did not originate in service and is not otherwise etiologically related to service. 3. The Veteran’s psychiatric disability did not originate in service and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing entitlement to service connection for a hernia disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for establishing entitlement to service connection for a psychiatric disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Air Force from April 1966 to February 1970. In April 2019, this claim was remanded for additional development. That development was completed, and the case has since been returned to the Board for appellate review. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. In Brokowski v. Shinseki, 23 Vet. App. 79 (2009), the Court extended the holding of Clemons to include disabilities outside of psychiatric disorders. In compliance with this case law, the Board considers the Veteran’s claim of entitlement to service connection for posttraumatic stress disorder (PTSD) as one that encompasses any psychiatric disorder. The Board also expands the Veteran’s claim of entitlement to service connection for left inguinal hernia to include all hernia disabilities. 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; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay 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, injury, or event and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a hernia disorder. 3. Entitlement to service connection for a psychiatric disorder. The Veteran asserts that his lumbar spine disability, hernia disability, and psychiatric disability were caused by an in-service fall down a flight of stairs. The Veteran’s service treatment records (STRs) do not document his claimed in-service fall. In addition, the STRs do not show any complaints of or treatment for a lumbar spine disability, a hernia, or a psychiatric disability. A February 2014 VA treatment record showed that the Veteran reported an insidious onset of low back pain that started 10 years prior. The physical therapist noted that the Veteran presented with symptoms of instability possibly due to a sustained injury in the past. In April 2014, the Veteran submitted a lay statement from a fellow airman recounting the details of the claimed in-service incident. The Veteran also submitted a March 2014 private examination completed by P.Y., D.C. The Veteran continued to report the in-service fall. He also reported that he immediately sought medical attention and was treated for his injury. The Veteran stated that since the injury he developed low back pain, as well as progressive pain and swelling of the left inguinal area. The diagnosis was posttraumatic residual degenerative joint disease and osteoarthritis of the lumbar spine and posttraumatic residual left inguinal hernia. Dr. Y. opined that that his lumbar spine disability and residual left inguinal hernia were more likely than not directly and causally related to the Veteran’s military service. The examination report also included a diagnosis of PTSD and noted various psychiatric symptoms. Dr. Y. opined that the Veteran’s PTSD was more likely than not a permanent condition which is directly and causally related to service. It was noted that the Veteran’s PTSD was in the process of being confirmed by the evaluation of a qualified mental health professional. An April 2014 VA mental health consult showed that the Veteran presented with excessive anxiety and significant insomnia. He reported bad dreams in which he was being chased or pursued. It was noted that the Veteran was never stationed in Vietnam and he denied combat exposures. His son died in 2009. He denied any additional past traumatic experiences. The Veteran discussed multiple current stressors including marital problems, intense conflict with a former friend, chronic back pain, and absence of meaningful stress reduction routines. The diagnosis was adjustment disorder with anxiety vs. generalized anxiety disorder. The Veteran continued VA mental health treatment until July 2017. During that time, VA treatment records continued to document the Veteran’s mental health symptoms related to his financial and marital problems. The assessment was adjustment disorder with anxiety and depression. The Veteran submitted an April 2014 private psychological evaluation completed by W.A., Psy.D., who conducted a clinical interview, administered the Minnesota Multiphasic Personality Inventory, and reviewed the Veteran’s records. It was noted that the Veteran provided the majority of information for the evaluation in the form of interview and assessment data. The Veteran reported that he experienced emotional changes secondary to the loss of multiple friends who served in Vietnam. He stated that he felt that he “should just go to Vietnam and die like all my buddies.” Thereafter, he enlisted in the Air Force. He continued to describe his in-service fall down a flight of stairs. He reported that he experienced fear because of the fall. Additionally, he was traumatized by deaths of his buddies. His current symptoms were recurrent intrusive thoughts about the loss of his friends, dreams about running and fighting, concentration problems, and exaggerated startle response. The Veteran stated that his anxiety symptoms were secondary to his military service. The diagnoses were anxiety disorder, panic disorder, and depressive disorder. Dr. A. opined that the Veteran’s anxiety symptoms were as likely as not related to service. The Veteran was afforded a VA examination in November 2019. The examiner concluded that the Veteran did not have a diagnosed mental health disorder. The examiner reviewed the Veteran’s claims file and opined that a diagnosis of an acquired psychiatric disorder was less likely than not incurred in or caused by active duty service. The examiner explained that although the evidence indicates that the Veteran took a bad fall during service, this event did not qualify as a Category A stressor in consideration of a PTSD diagnosis. Additionally, the service treatment records did not reflect any assessment, diagnosis, or treatment for a mental health disorder. Moreover, post-service medical records showed VA mental health treatment from 2014 to 2017 for more of an adjustment reaction secondary to personal stressors going on in his life at those times. The examiner noted that the post-service VA treatment records did not indicate that the Veteran was being seen for anything related to his active duty service. The examiner also addressed the private favorable opinions. It was noted that, although they provide mental health diagnoses and relate them to the in-service fall, the private medical opinion providers did not complete comprehensive record review and no rationale was provided for making such association. The primary source of information relied upon to formulate the private medical opinions was the Veteran’s self-report. The November 2019 VA examiner also stated that the psychological testing completed by the private psychologist did not provide findings that could relate any mental health issues to his active duty service. Therefore, the private opinions were biased and unreliable. The VA examiner also stated that at the time of the VA examination, the Veteran did not report any mental health complaints and he had been out of mental treatment since 2017. Therefore, there was no clinical information present to show that the Veteran was functionally impaired as a result of an in-service mental health disability. The Veteran underwent a VA back examination in December 2019. The diagnoses were degenerative arthritis of the lumbar spine and intervertebral disc syndrome. The examiner noted that a 2006 x-ray revealed lumbar spine degenerative joint disease and degenerative disc disease. The Veteran reported that his back pain developed after his in-service fall. The examiner provided an opinion against the claim. The examiner stated that the March 2014 private medical opinion and buddy statement were duly noted. In support of the opinion, the examiner noted that the Veteran’s January 1970 separation examination showed a normal spine and that the service treatment records were silent for any chronic back symptoms or diagnoses. Additionally, there was no current objective evidence that the Veteran’s reported fall injury in service was more than an acute and transitory event or that it or his military service could have caused or aggravated to any degree his current lumbar spine degenerative joint disease/degenerative disc disease. In December 2019, the Veteran was afforded a VA examination, at which time the examiner diagnosed inguinal hernia and umbilical hernia. The Veteran reported that he developed hernias in 2014 and that he had surgery to correct the one on the left. The Veteran was unsure as to whether the in-service fall caused the hernias. The examiner opined that it was less likely than not that the Veteran’s current hernias were caused or aggravated to any degree by his military service, including his claimed in-service fall. The examiner reviewed the Veteran’s claims file, to include the March 2014 private opinion and the April 2014 lay statement. The examiner stated that the Veteran’s January 1970 separation examination documented a normal examination without evidence of a hernia. Other STRs were also silent for hernia symptoms or diagnosis. Therefore, there was no current objective evidence that the Veteran’s claimed fall injury in service was more than an acute and transitory event or that it or his military service could have caused or aggravated to any degree any of his current hernias. Upon consideration of the evidence above, the Board finds that the preponderance of the evidence is against service connection for a lumbar spine disability, a hernia disability, or a psychiatric disability. Significantly the medical evidence shows diagnoses of a lumbar spine disability in 2006, an inguinal hernia in 2006, and a psychiatric disorder in 2014; such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). As detailed above, the Board acknowledges the private medical opinions provided in March 2014 and April 2014. However, the Board finds that the medical opinions are inadequate as they were not supported by any rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from sound reasoning). Moreover, it does not appear that the private examiners fully considered the Veteran’s medical records, including the history of the claimed disabilities. On the other hand, the Board affords significant probative value to the opinions provided by the November 2019 and December 2019 VA medical examiners. The medical opinions were supported by adequate rationale, included a thorough review of the evidence, and addressed the conflicting medical opinions of record. Additionally, presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty or on the basis of continuity of symptomology is not warranted in this case. The evidence demonstrates that the Veteran’s lumbar spine disability was diagnosed more than one year after his discharge from service. 38 C.F.R. § 3.307(a). Moreover, any allegation of a continuity of lumbar spine symptomatology since service is inconsistent with the evidence of record. As such, presumptive service connection, to include on the basis of continuity of symptomatology is not warranted for his lumbar spine disability. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. REASONS FOR REMAND Entitlement to service connection for a deviated nasal septum is remanded. The Veteran asserts that his claimed deviated nasal septum was caused by an in-service fall. He recently underwent a VA examination in December 2019. The examiner concluded that there was no objective evidence found on review or examination to support a diagnosis of septal deviation during service or at the time of the VA examination. Therefore, the examiner did not provide an opinion as to whether the Veteran’s claimed nasal septal deviation was related to service. The Board finds that the December 2019 VA medical opinion is inadequate for adjudication purposes. Specifically, the December 2019 VA examiner failed to reconcile the opinion with the other evidence of record. A July 2014 VA examination included a diagnosis of deviated nasal septum. An October 2015 computed tomography (CT) scan of the sinuses revealed that the nasal septum was minimally deviated. A February 2016 VA ENT followup examination revealed a septum with mild deviation but no obstruction. The medical evidence of record demonstrates that the Veteran received a diagnosis of deviated nasal septum during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the existence of a current disability may be satisfied when a claimant has a disability at the time a claim for compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim). Accordingly, a remand is required to obtain another medical opinion. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. 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, the AOJ should obtain a medical opinion from a physician with sufficient expertise, to determine the nature and etiology of the Veteran’s deviated nasal septum. All pertinent evidence of record must be made available to and reviewed by the examiner. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. Following a review of the relevant records and lay statements, the examiner must provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent or greater degree of probability) that the Veteran’s deviated nasal septum began in or is otherwise related to his active duty service? (b) Whether it is at least as likely as not (50 percent or greater degree of probability) that the Veteran’s deviated nasal septum was caused or aggravated by his service-connected allergic rhinitis? The examiner must consider and discuss the diagnosis of deviated nasal septum shown in the medical records. The examiner should also consider and discuss the March 2014 and December 2019 medical opinions. 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 the 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. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. McKinley, 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.