Citation Nr: 21026157 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 20-15 243 DATE: April 30, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a head injury is remanded. Entitlement to service connection for degenerative arthritis of cervical spine is remanded. Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from January 1964 to January 1967. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held 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. Medical evidence of record contains complaints of and treatment for depression. Thus, while the Veteran specified that he was seeking service connection posttraumatic stress disorder (PTSD), the claim has been broadened to include other psychiatric disabilities and is re-characterized accordingly. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107 (a)(2). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection an acquired psychiatric disorder, originally claimed as PTSD, to include as secondary to service-connected disabilities The Veteran claims entitlement to service connection for an acquired psychiatric disorder. The Veteran’s lay statements and VA treatment records note complaints of depression. The Veteran is competent to report symptoms observable to a layperson. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran was also seen by a psychiatrist in service in April 1965. At present, the Veteran has not received a VA examination for mental disorders. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. In the present case, a VA mental disorders examination and medical opinion is necessary to comprehensively evaluate the Veteran’s claim for service connection. 2. Entitlement to service connection for a head injury The Veteran claims entitlement to service connection for a head injury. The Veteran claims that an in-service injury occurring in April 1965 has resulted in his current migraine headaches and memory loss. As noted above, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran’s VA treatment records note active diagnosis for migraines. In a June 2018 Initial Evaluation of Residuals of Traumatic Brain Injury (I-TBI) disability benefits questionnaire (DBQ), the examiner noted that the Veteran reported experiencing subjective symptoms such as migraines, memory loss, and tension headaches. Accordingly, the requirement for a current disability has been satisfied. Further, the Veteran’s service treatment records do note an April 1965 injury during his period of active service. An April 1965 service treatment record notes that the Veteran fell from his top bunk and was hospitalized for back pain. Thus, the requirement for an in-service injury is also satisfied. At issue in the present case is whether the Veteran’s current head injury was incurred during or caused by his period of active service. The Veteran contends that during the April 1965 fall from his bunk he hit his head and was knocked unconscious resulting in a TBI, manifested by migraines, memory loss, and tension headaches. He further contends that the symptoms of a conversion reaction mirror those of a head injury. In June 2018, the Veteran completed an I-TBI DBQ to evaluate his current head injury. The Veteran reported that his headaches and memory loss have continued and progressed in severity since his April 1965 in-service injury. Following and in-person examination and review of the Veteran’s medical history, the examiner determine it was less likely than not that the Veteran’s claimed TBI was not incurred during or caused by his period of active service. The examiner reasoned that the Veteran’s service records are silent for a diagnosis of or treatment for a head injury. The examiner also noted that during active service the Veteran was seen twice for psychiatry evaluation, and no TBI was reported in those evaluations. The Board finds that the June 2018 opinion is inadequate. The Board notes that the absence of treatment records cannot be the sole basis for the denial of a service connection claim. See Dalton v. Peake, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination)). Further, a medical opinion is inadequate if the examiner’s rationale fails to account for pertinent evidence, to include competent lay statements describing symptoms of the disability at issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331,1335 (Fed. Cir. 2006) (noting that “lay evidence is one type of evidence that must be considered, if submitted, when a veteran's claim seeks disability benefits”). In the present case, the examiner failed to address the Veteran’s contention that the symptoms of a TBI have continued and progressed since the April 1965 injury. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, a new VA medical opinion is required to comprehensively evaluate the Veteran’s claim for service connection. 3. Entitlement to service connection for degenerative arthritis of the cervical spine The Veteran claims entitlement to service connection for degenerative arthritis of the cervical spine. The Veteran claims that an in-service injury occurring in April 1965 has resulted in his current degenerative arthritis of the cervical spine. As noted above, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran’s VA treatment records note active diagnosis for low back pain. In an October 2017 Neck Conditions DBQ, the Veteran was diagnosed with degenerative arthritis of the cervical spine. Accordingly, the requirement for a current disability has been satisfied. Further, the Veteran’s service treatment records do note an April 1965 injury during his period of active service. Thus, the requirement for an in-service injury is also satisfied. At issue in the present case is whether the Veteran’s current degenerative arthritis of the cervical spine was incurred during or caused by his in-service injury. The Veteran contends that during the April 1965 fall from his bunk he injured his cervical spine and that injury has progressed in severity since the onset of the injury. In October 2017, the Veteran completed a Neck Conditions DBQ. At examination, the Veteran’s diagnosis of degenerative arthritis of the cervical spine was confirmed. Following an in-person examination and review of the Veteran’s medical treatment records, the examiner found that it was less likely than not that the Veteran’s arthritis was incurred during or caused by his in-service injury. The examiner reasoned: [April 9, 1965] shows hospitalization for back pain from [April 9, 1965 to May 14, 1965,] 35 days with “[diagnosed] low back contusion, possible conversion reaction, possible malingerer.” Clearly treating providers at the time of the injury where not impressed by the severity of the injury. Based on the documented impressions of the treating providers at the time of the injury it is less likely than not that current neck, back, or spine pathology is due to in-service fall from bunk beds. The Board finds that the October 2017 medical opinion is inadequate. The stated rationale does not address the Veteran’s contentions of continued pain since the in-service injury. The rationale also provides no medical reasoning for the etiology of the Veteran’s current degenerative arthritis of the cervical spine. A medical opinion is considered probative if it is definitive and supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448 (2000). The June 2018 opinion is conclusory and not based on pertinent medical evidence. Accordingly, an additional medical opinion in necessary to comprehensively evaluate the Veteran’s claim for service connection. 4. Entitlement to service connection for degenerative arthritis of the thoracolumbar spine The Veteran claims entitlement to service connection for degenerative arthritis of the thoracolumbar spine. The Veteran claims that an in-service injury occurring in April 1965 has resulted in his current degenerative arthritis of the thoracolumbar spine. As noted above, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran’s VA treatment records note active diagnosis for low back pain. In an October 2017 Back Conditions DBQ, the Veteran was diagnosed with degenerative arthritis of the thoracolumbar spine. Accordingly, the requirement for a current disability has been satisfied. Further, the Veteran’s service treatment records do note an April 1965 injury during his period of active service. Thus, the requirement for an in-service injury is also satisfied. At issue in the present case is whether the Veteran’s current degenerative arthritis of the thoracolumbar spine was incurred during or caused by his period of active service. The Veteran contends that during the April 1965 fall from his bunk he injured his thoracolumbar spine and that injury has progressed in severity since the onset of the injury. In October 2017, the Veteran completed a Back Conditions DBQ. At examination, the Veteran’s diagnosis of degenerative arthritis of the thoracolumbar spine was confirmed. Following an in-person examination and review of the Veteran’s medical treatment records, the examiner found that it was less likely than not that the Veteran’s arthritis was incurred during or caused by the Veteran’s reported in-service injury. The examiner reasoned: [April 9, 1965] shows hospitalization for back pain from [April 9, 1965 to May 14, 1965,] 35 days with “[diagnosed] low back contusion, possible conversion reaction, possible malingerer.” Clearly treating providers at the time of the injury where not impressed by the severity of the injury. Based on the documented impressions of the treating providers at the time of the injury it is less likely than not that current neck, back, or spine pathology is due to in-service fall from bunk beds. The Board finds that the October 2017 medical opinion is inadequate. The stated rationale does not address the Veteran’s contentions of continued pain since the in-service injury. The rationale also provides no medical reasoning for the etiology of the Veteran’s current degenerative arthritis of the thoracolumbar spine. A medical opinion is considered probative if it is definitive and supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448 (2000). The June 2018 opinion is conclusory and not based on pertinent medical evidence. Accordingly, an additional medical opinion in necessary to comprehensively evaluate the Veteran’s claim for service connection. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his claimed acquired psychiatric disorder. The examiner must provide an opinion as to: a. Does the Veteran have a current diagnosis of an acquired psychiatric disorder? b. If so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder began during active service, or is related to an incident of service. c. Whether the Veteran’s acquired psychiatric disorder is at least as likely as not proximately due to the service-connected disabilities, to include bilateral hearing loss and tinnitus. d. Whether the Veteran’s acquired psychiatric disorder is at least as likely as not aggravated beyond its natural progression by the service-connected disabilities, to include bilateral hearing loss and tinnitus. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Provide the Veteran’s claims file to a qualified VA clinician to discuss the etiology of the Veteran’s claimed head injury. 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 examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current head injury began during active service, or is related to an incident of service. The examiner should address the Veteran’s statements noting that his headaches and memory loss have continued and even progressed in severity since the in-service injury on April 1965. The examiner should also address the Veteran’s contention that symptoms of a conversion reaction mirror those of a head injury. The examiner is reminded that the absences of contemporaneous service treatment records noting TBI during active service cannot be the sole reason for denying service connection. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Provide the Veteran’s claims file to a qualified VA clinician to discuss the etiology of the Veteran’s degenerative arthritis of the cervical spine. 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 examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s degenerative arthritis of the cervical spine began during active service, is related to an incident of service, or began within 1 year of the Veteran’s completion of active service in January 1967. The examiner should address the Veteran’s statements noting that his neck pain has continued and even progressed in severity since the in-service injury on April 1965. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Provide the Veteran’s claims file to a qualified VA clinician to discuss the etiology of the Veteran’s degenerative arthritis of the thoracolumbar spine. 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 examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s degenerative arthritis of the thoracolumbar spine began during active service, is related to an incident of service, or began within 1 year of the Veteran’s completion of active service in January 1967. The examiner should address the Veteran’s statements noting that his low back pain has continued and even progressed in severity since the in-service injury on April 1965. (Continued on the next page)   The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. P. Saindon Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.