Citation Nr: 21024375 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 20-01 493 DATE: April 22, 2021 ORDER Entitlement to service connection for radiculopathy of the left lower extremity, including as secondary to service-connected disabilities, is denied. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to service-connected disabilities, is denied. REMANDED Entitlement to service connection for psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of radiculopathy of the left lower extremity. 2. The Veteran does not have a diagnosis of radiculopathy of the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.4, 3.102, 3.303, 3.304, 3.310. 2. The criteria for entitlement to service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from September 2016 to May 2018. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a September 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). 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 established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by, or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for radiculopathy of the left lower extremity; and, 2. Entitlement to service connection for radiculopathy of the right lower extremity The Veteran contends that he has radiculopathy of the left and right lower extremities secondary to his service-connected back, hip, and knee conditions. The Board notes the Veteran is currently service-connected for degenerative arthritis of the spine evaluated at 20 percent, and right knee strain evaluated at 10 percent. He is not currently service-connected for a hip or left knee condition. The Veteran reports his injuries are directly linked to a parachute malfunction he experienced in August 2017 and are the result of hard landings during his training. The Veteran has described his symptoms as “sharp shooting pain that also has periods of dull aches, numbness, and burning sensation” that causes the Veteran’s knees to buckle and give out. The Veteran has argued for a new examination to determine his diagnosis and etiology. One was provided in September 2019 in which no diagnosis was found to be warranted. The representative asserts the Veteran suffers from cervical, lumbar, and hip conditions and has not had “any other life experiences outside of his military service that would have caused these issues.” He contends the record shows the Veteran sustained impact injuries during jump training and that VA has used an improper standard of proof in this case. See, 38 U.S.C. § 5107(b). The Veteran’s military personnel records document his military occupational specialty (MOS) as construction equipment repairer and reveal he successfully completed Airborne training in April 2017, receiving the Parachutist Badge. The Veteran’s service treatment records show no subjective complaints of radiculopathy or related symptoms. A March 2018 note indicates no numbness, weakness, or tingling stemming from his back pain. In a November 2017 emergency room visit shortly after his parachuting incident, the Veteran denied numbness and tingling. And the Veteran reported no numbness, tingling, history of injury or trauma related to his back pain in April 2018. Further, the Veteran does not argue for service connection under a direct theory of entitlement. Therefore, the question before the Board is whether the Veteran has a current disability that is proximately due to, or aggravated by, his service-connected disabilities. See, 38 C.F.R.§ 3.310. The Board concludes that the Veteran does not have a current disability or diagnosis of radiculopathy of the left or the right extremity and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran was provided an initial VA examination in July 2018, two months following separation from service. The examiner indicated there was no radicular pain, symptoms, or other pathology to render a diagnosis of radiculopathy. The Veteran reported feeling back pain due to training with heavy gear, such that he experiences shooting pain down his leg without numbness. Straight leg raise, reflex, and sensory exams were performed and produced negative or normal results. The examiner evaluated the Veteran and determined that, while he had subjective symptoms, there was a lack of objective evidence for the disability and no other neurological abnormalities were found. The Veteran was provided another VA examination in September 2019 related to his claim. The examiner noted a back DBQ was more appropriate for this Veteran rather than a peripheral nerve DBQ. The Board finds this reasonable given the Veteran has consistently stated his symptoms originate from his back, or alternatively his hip, which is not currently service connected. Following examination, the VA examiner concluded there was no objective evidence to support a finding of radiculopathy of the lower left or right extremity. Again, straight leg raise, sensory, reflex, ROM, and muscle strength testing each produced normal results. The Veteran was provided several additional VA examinations in relation to his lower back claim. A December 2019 examination shows no radiculopathy or other neurologic abnormalities present. Straight leg raise, reflex, and sensory exams were within normal limits. An August 2020 examination revealed no signs or symptoms of radiculopathy, with normal testing results. In September 2020, the Veteran was given an in-person VA examination in relation to his lower back. The examiner found no radiculopathy and testing results were noted as normal. The Veteran was provided another in-person back examination in January 2021 and the examiner concluded no pain, signs, or symptoms were due to radiculopathy. In total, the Veteran has been provided six examinations, each included a physical exam and diagnostic testing to confirm the presence of radiculopathy. All exams have been negative. The Board finds the medical examinations adequate, credible, and probative. Each examination was conducted in-person and includes a review of the record and is informed of the Veteran’s health history. Each examiner performed relevant diagnostic testing and each report indicates consideration of the Veteran’s lay statements concerning his symptoms and alleged injuries or in-service events. None of the opinions are inconsistent with the documented record or omit critical facts. The examiners’ conclusions are uncontroverted by other examinations or medical evidence of record. As such, the Board accords substantial probative weight to the several VA medical opinions. Additionally, there is no indication in the record the Veteran’s symptoms amount to a disability pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. While the Veteran believes he has radiculopathy, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ and nerve systems in the body, and the ability to perform and interpret diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence which shows no diagnosis exists. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See, Degmetich v. Brown, 104 F.3d 1328 (1997). While the Board gives significant consideration to the Veteran’s assertions, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Unfortunately, the evidence weighs heavily against the claim for disability in this case. In the absence of proof of a present disability there can be no valid claim. Brammer v. Brown, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for radiculopathy of the left and right lower extremities must be denied. See, 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. REASONS FOR REMAND Service connection for posttraumatic stress disorder requires: (1) medical evidence diagnosing the condition; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Effective August 4, 2014, VA regulation requires that mental disorder diagnoses be based upon the criteria provided in Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association. See, 38 C.F.R. § 4.125(a). If VA determines that the Veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the Veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the Veteran’s testimony or statements. See, Moreau v. Brown, 9 Vet. App. 389, 394 (1996). If a Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to “fear of hostile military or terrorist activity,” then the Veteran’s testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant’s testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. 1. Entitlement to service connection for psychiatric disorder is remanded. The Veteran contends he is entitled to service connection for a psychiatric disorder. Specifically, the Veteran believes he developed post-traumatic stress disorder (PTSD) following a parachuting incident in September 2017 that resulted in a near-death experience. See, PTSD Statement in Support, 6/11/2018, pg. 1/5. He reports, while executing a training exercise at Fort Bragg, his parachute did not function properly, and his reserve chute tangled around his feet and face. PTSD Statement in Support, 7/6/2020, pg. 3/6. The resulting fall left him unconscious and hospitalized. He reports immediate aftereffects of lost motivation, behavioral issues, and low performance. See, Statement in Support, 8/9/2019, pg. 1/2. He reports experiencing nightmares 3 or 4 times a month, feelings of panic and hypervigilance, and believes the incident resulted in his subsequent bahavioral problems and alcohol dependence. Id. See also, Statement in Support, 2/3/2021, pg. 2/3. The Veteran’s representative contends the Veteran has a current diagnosis of PTSD, and the RO misinterpreted the Veteran’s claim as one for alcohol abuse rather than a coping mechanism of an underlying psychiatric disorder. See, NOD, 8/9/2019, pg. 4/12. The representative has also asserted the VA examiner did not properly assess the Veteran for PTSD based on his reported symptoms and therefore a new examination is warranted. See, Third Party Correspondence, 11/24/2020, pg. 2/4. He argues the examination is inadequate as it is factually inconsistent and lacks a rationale for omission of relevant symptoms. The Veteran originally filed his claim for service connection for “[DC] 9411, mental disorders: anxiety: post-traumatic stress disorder with behavioral and alcohol problems.” See, Claim, 6/11/2018. The RO denied the claim, characterized as “alcohol use disorder,” based on a July 2018 VA examination. See, Rating Decision, 8/9/2018. The examiner concluded the Veteran did not meet the DSM-5 or DSM-4 criteria for any diagnosis except severe alcohol use disorder. C&P, 7/17/2018, pg. 2/9. The Board notes the Veteran’s alcohol use disorder is not subject to entitlement as “no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs.” 38 U.S.C. §§ 1110, 1131. Therefore, the question before the Board is whether the Veteran has a current disability subject to VA compensation. The Board concludes there is sufficient evidence to warrant remand for examination. 38 U.S.C. § 5103A (d)(1). Although the July 2018 VA examiner declined to provide a PTSD diagnosis, a September 2020 treatment note reveals the Veteran received subsequent evaluations for PTSD in March and April 2020. See, CAPRI, 12/3/2020, pg. 75/276. Review of the April evaluation indicates the Veteran was given a tentative diagnosis of PTSD, however, with a note that a trauma-focused assessment would be needed to confirm the diagnosis. Pg. 138/276. Psychiatry notes from June 2020 demonstrate the need to clarify the Veteran’s diagnosis between PTSD and adjustment disorder. Pg. 122/276. The medical record also indicates the Veteran experiences suicidal ideations, feelings of persecution and other paranoia, nightmares, feeling detached, sleep difficulties, anxiety, and hypervigilance. Pgs.126-127, 220/276. A September 2020 note indicates the Veteran is no longer seeking treatment at the mental health clinic. Pg. 76/276. Therefore, the Board finds the medical record is not sufficiently clear as to whether the Veteran has a formal diagnosis of PTSD meeting the criteria of DSM-5, or other psychiatric disorder. See, 38 C.F.R. §§ 3.304(f), 4.125(a). The scope of a claim for service connection includes any disability that may reasonably be encompassed by the description of the claim, reported symptoms, and other information of record. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). Consideration of a claim cannot be limited based on the Veteran’s belief that he suffered from PTSD, something he generally is not competent to render. Id. at 15. Further review of the medical evidence indicates the Veteran has been given at least one psychiatric diagnosis since his VA examination. A February 2020 medical record shows the Veteran reported audio verbal hallucinations (AVH) with an onset of 2016. See, CAPRI, 12/3/2020, pg. 219/276. In April 2020, he was given a DSM-5 diagnosis of psychosis- “Other Psychotic Disorder not due to a Substance or Known Physiological Condition” with an indication he may meet the criteria for other psychosis related disorders. Pgs. 138, 219, 221, 225/276. The Board finds it appropriate to expand the claim to include any psychiatric or mental disorder as described on the title page of this decision. Although the Veteran’s treatment records do not contain an emergency or hospital entry at the time of the alleged stressor event, the Board finds that the evidence is, at minimum, in equipoise as to whether the Veteran experienced a non-combat stressor in service. The Veteran’s military personnel records document his military occupational specialty (MOS) as construction equipment repairer. DD-214, 5/11/2018. However, they reveal he successfully completed Airborne training in April 2017 and obtained the Parachutist Badge. MPR, 7/10/2018, pgs. 1, 15/278. The Army Records Processing Center (ARPC) submitted a June 2018 certification that all available service records for the Veteran have been submitted to VBA. STR, 6/30/2018, pg. 1/2. However, the letter indicates one or more sections is absent or missing. The Veteran submitted his individual jump record and noted at least two jumps missing from the record. See, Correspondence, 9/4/2018, pg. 1/3. The Veteran also provided a portion of his medical record from his in-service substance abuse treatment. It contains a statement from the Veteran made in February 2018, that he had a “bad jump” and has had nightmares about it since August 2017. See, MTR, 9/4/2018, pg. 2/3. As these records were not a part of the claims file, the Veteran should be afforded the opportunity to submit any additional service records pertinent to the claim. Thorough review of the claims file shows a parachuting incident likely occurred in August 2017. In November 2017, the Veteran visited the emergency room for separate physiological symptoms. He reported to the nurse that two separate “bad jumps” occurred in the same week during his August training. The Veteran reported he had a poor landing in the first jump. Three days later, the Veteran performed a combat gear jump where his main parachute failed. He recalled pulling his reserve chute before losing consciousness and awoke to soldiers removing his equipment. STR, 6/30/2018, Pg. 7/15. Additionally, the Veteran was required to undergo behavioral health treatment due to misconduct. His evaluation conducted in preparation for separation states, “despite his report of ‘experiencing a near death experience on a jump’ he is not experiencing significant distress.” STR, 6/30/2018, pg. 174/263. From November 2017 to January 2018, the Veteran participated in individual behavioral therapy and was diagnosed with threat of job loss throughout treatment. The clinician noted the Veteran was not exposed to trauma, reasoning that he “reported experiencing a bad jump, yet never endorsed significant symptoms” on PTSD screening. Pg. 171/263. They concluded there was no evidence of mental defect, emotional illness, or psychiatric disorder.” Pg. 174/263. In April 2018, the Veteran reported to the behavioral health indicating he was “mentally breaking down.” Pg. 81/263. He endorsed passive and fleeting suicidal ideation, excessive worry, irritability, anger, insomnia, depressed mood, and feelings of persecution. Pg. 82-83. The clinician provided a diagnosis of “irritability and anger” and “other problem related to employment” due to the Veteran’s pending Chapter separation. Pg. 85/263. No medical opinion has been provided addressing the significance of this evidence and remand is necessary before the Board may adjudicate the merits. See, 38 U.S.C. § 5103A(d)(2)(C); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran the opportunity to submit relevant service records in his possession, and obtain any outstanding private or VA treatment records and associate them with the claims file. 2. Schedule the Veteran with the appropriate clinician for a psychiatric evaluation, to include PTSD and non-PTSD disorders. Provide the clinician with the claims file and a copy of this remand. Following review of the Veteran’s service records, lay statements, medical records, and current psychiatric evaluation, the examiner is asked to provide the following: (a.) Does the Veteran have any psychiatric or mental health diagnosis? Please include your consideration of PTSD, psychosis, or adjustment disorder. (b.) For any diagnosis given, please opine whether it is more likely than not (50% or greater probability) that the Veteran’s psychiatric diagnosis is related to his military service. (c.) If a PTSD diagnosis is provided, please opine whether it is more likely than not (50% or greater probability) that the Veteran’s PTSD is related to the claimed parachuting incident in August 2017 (i.e. a near-death experience). Attention is invited to: Initial BH evaluation, VBMS, document labeled STR, receipt date 6/20/2018, pg. 211/263; Closing BH evaluation at STR, 6/20/2018, pg. 168/263 and pg. 81/263; C&P Exam on 7/17/2018; MH treatment at CAPRI, 12/3/2020, pgs. 122-160, 219-225/276 (showing current diagnoses). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.