Citation Nr: 21029212 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-62 236A DATE: May 12, 2021 ORDER Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine with arthritis is granted. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. Entitlement to service connection for panic disorder is granted. FINDINGS OF FACT 1. The Veteran's DDD of the lumbar spine with arthritis had its onset during active service. 2. An April 2004 rating decision denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. The Veteran did not appeal that decision and new and material evidence was not received within one year of notice of its issuance. 3. Evidence received more than one year since the April 2004 rating decision has not been previously considered and relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. 4. The Veteran's panic disorder is related to stressors experienced on active service. CONCLUSIONS OF LAW 1. The criteria for service connection for DDD of the lumbar spine with arthritis are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. New and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 3. The criteria for service connection for panic disorder are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1987 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) from August 2013 and July 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. 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. § 1131; 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). 1. Entitlement to service connection for DDD of the lumbar spine with arthritis is granted. The Veteran relates his lumbar spine DDD with arthritis to injuries sustained during active service. See Hearing Transcript (Tr.) 2, 4; January 2018 VA Form 9; September 2017 Notice of Disagreement (NOD); August 2017 Statement in Support of Claim. The Board agrees. With respect to the first element of service connection, a current disability, medical evidence of record establishes that the Veteran has been diagnosed with DDD of the lumbar spine with arthritis. Specifically, a July 2017 C&P examination indicates a diagnosis of degenerative arthritis of the spine and DDD multi-level lumbar spine, and that "MRI and CT scans show degenerative arthritis involving multiple levels with a disc bulge at L5-S1 that may be in contact with the left S1 root." A March 2015 private treatment record indicates a diagnosis of degenerative changes of the lumbar spine, facet syndrome, and low back syndrome. A June 2014 x-ray revealed minimal scoliosis in the lower thoracic and upper lumbar region; mild thinning of the L5-S1 vertebral disk space with small osteophytes seen at L3-L4; and some sclerosis of the facets from L2 to S1, all felt to be degenerative in nature. Thus, the first element of service connection is met. With respect to the second element of service connection, in-service incurrence of a disease or injury, the Veteran has related his lumbar disability to the cumulative impact of his duties, namely spreading gravel, working as a mechanic, moving a waterbed upstairs, and being blown overboard. See March 2021 private medical opinion; Tr. 2; May 2014 VA pain consult; July 1989 service treatment record (STR); August 2013 C&P psychiatric examination. The Veteran's STRs show that he complained of low back pain while in service. See November, September, August, and July 1989 STRs; April 1988 STR. On the December 1989 separation Report of Medical History (ROMH), the Veteran endorsed recurrent back pain. The claimed in-service injuries are not documented in the Veteran's service records, except for a July 1989 STR showing complaints of back pain due to carrying a waterbed. However, when considering that the Veteran's military occupational specialty was aviation machinist, the Board finds his assertion that working as a mechanic resulted in back pain is consistent with the circumstances of his service. See DD 214; 38 U.S.C. § 1154(a). In light of this and the documented complaints of back pain in service, the second element of service connection is met. Thus, this case turns on the third element of service connection, a causal relationship between the disability and in-service incurrence, otherwise known as a nexus. A July 2017 C&P examiner opined that the Veteran's lumbar disability was less likely than not related to service. The examiner reasoned that the Veteran's STRs characterized his back disability as low back pain and x-rays were negative for pathology. The examiner also noted that there was no evidence of trauma in service and related the degenerative changes of his spine to aging. The Board agrees with the Veteran's representative that the opinion contradicts itself by attributing his back condition to aging while also acknowledging in-service complaints, speculates that aging is the sole etiology of his back condition, and fails to consider the in-service back pain complaints as evidence of a lower back issue. See April 2018 Statement of Accredited Representative in Appealed Case. Furthermore, although the examiner noted that the Veteran's presentation has been described as "histrionic" in past records, this would not affect the findings of imaging studies that have revealed degenerative changes of the spine, as detailed above. For these reasons, the Board finds the July 2017 C&P examination to be inadequate and non-probative. A March 2021 private medical opinion states that "it is highly likely that [the Veteran's back disability] is a direct result of his shoveling gravel" because based on personal experience and medical literature "it is known that heavy manual labor can precipitate low back pain." The Board finds this favorable nexus opinion to be credible and probative. Notably, the doctor has been treating the Veteran for 5 years and is thus closely familiar with his medical history and presentation. Furthermore, the doctor reviewed his STRs and notes that he has "no other known risk factors that may have precipitated his current condition." Furthermore, even though the doctor attributed his back pain specifically to shoveling gravel, she explained that "heavy manual labor" is a known cause of back pain. As an aviation machinist, the Board emphasizes that the Veteran likely performed heavy manual labor in service. See DD Form 214. In sum, evidence of record shows that the Veteran has a currently diagnosed lumbar disability, and his STRs reflect complaints of low back pain in service. In addition, the negative nexus opinion of record is non-probative. The positive nexus opinion, moreover, is probative and states that heavy manual labor, which the Veteran engaged in during service as an aviation machinist, is the cause of his back disability. Thus, all elements of service connection are established and the benefit sought on appeal with respect to a low back disability is granted. 2. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In September 2003, the Veteran filed a claim for service connection for an acquired psychiatric disorder, which was denied in an April 2004 rating decision on the basis that the evidence failed to show a diagnosis for which service connection may be granted. The Veteran did not file a Notice of Disagreement (NOD) within one year of notification of the September 2003 denial, and new and material evidence was not received within this period. Accordingly, the September 2003 rating decision is final. See 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Evidence received more than one year after the April 2004 rating decision includes a May 2018 private psychiatric examination and etiology opinion relating the Veteran's psychiatric disorder to stressors experienced during active service. This evidence is new in that it was not considered in the April 2004 denial. This evidence is material in that it relates to a nexus between the Veteran's claimed disability and service, an unestablished fact necessary to substantiate the claim. Therefore, the previously denied claim regarding service connection for a psychiatric disorder is reopened. 3. Entitlement to service connection for panic disorder is granted. The Veteran relates his psychiatric disorder to stressors experienced during active service. See Tr. 8-9; March 2018 VA Form 9; October 2017 Statement in Support of Claim; February 2016 Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder; February 2012 Correspondence. At the hearing, the Veteran limited his claim to service connection for a panic disorder. See Tr. 11-13. A veteran is presumed to be in sound condition where he or she is examined, accepted, and enrolled in service, except for defects noted at service entry. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where a defect is not noted at service entry, the presumption of soundness is not rebutted unless there is clear and unmistakable evidence that a disability preexisted service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). In this case, there is a question as to whether the Veteran's psychiatric disorder preexisted his military service. In this regard, an August 2013 C&P examiner opined that the Veteran had "significant personality disorder issues prior to the military." The Veteran's November 1986 entrance examination is absent of any notations of psychiatric disorders. Therefore, with respect to a psychiatric disorder, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both preexisted service and was not aggravated in service. Id; see also Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v Shinski, 22 Vet. App. 390, 396 (2009). Despite the August 2013 examiner's opinion that the Veteran had a personality disorder before service, this is a matter of opinion on which reasonable medical professionals could disagree and there is no evidence clearly and unmistakably establishing that the Veteran had a psychiatric disorder preexisting service. The examiner's statement, alone, is based on the Veteran's reports and is not sufficient to rebut the presumption of soundness in this case, given the more contemporaneous normal entrance examination. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). With respect to the first element of service connection, a current disability, the Veteran has been diagnosed with a panic disorder. See January 2021 private medical memorandum (indicating she was amending her prior diagnosis to include panic disorder). Thus, the first element of service connection is met. Additionally, with respect to the second element of service connection, the evidence is at least in equipoise as to whether a psychiatric disorder manifested during service. See June 1988 STR psychiatric evaluation. Specifically, the Veteran was seen for psychiatric complaints in service, including active suicidal ideation, and a psychologist indicated a possible in-service diagnosis of panic disorder. See May 1989 (indicating possible panic disorder) and June 1988 STRs (indicating depression and active suicidal ideation). In this regard, the Board acknowledges that the Veteran has asserted his current psychiatric disorder stems from in-service traumatic events related to being blown overboard, his friend being killed by a bomb, and rescuing dead sailors from a ship fire. See April 2018 private psychiatric evaluation; August 2013 C&P examination. Although these specific incidents are not documented in his STRs or service records, the claimed stressors of being blown overboard and a ship fire are consistent with the circumstances of his service, which included service aboard an aircraft carrier. See DD 2145; 38 U.S.C. § 1154(a). In addition, the Veteran credibly related his psychiatric condition to being blown overboard at the hearing and he has consistently asserted the same stressors over several years. See Tr. 9; October 2017 Statement in Support of Claim; February 2016 Statement in Support of Claim for Service Connection for PTSD; August 2013 C&P psychiatric examination. However, the Board need not address whether there is credible supporting evidence of such stressors, as the second element of service connection is met as to in-service incurrence of psychiatric disease. The first two elements of service connection having been met, this case turns on the third element of service connection, a causal relationship between the disability and in-service incurrence, otherwise known as a nexus. The August 2013 C&P examiner opined that the Veteran's psychiatric disorder was less likely than not related to the claimed in-service stressors. The examiner based this negative opinion on his diagnosis of a personality disorder and his belief that this disorder preexisted service. As noted above, however, there is no clear and unmistakable evidence that the Veteran had a personality disorder before service. The examiner also questioned the veracity of the claimed stressors based on the lack of in-service documentation and believed the Veteran was embellishing his symptoms and failed to address his in-service symptoms. In this regard, the examiner only noted review of the Veteran's more recent treatment records, as opposed to his service treatment records. Thus, this unfavorable opinion is of no probative value. In favor of the claim is a January 2021 private medical memorandum, which states that the Veteran's claimed in-service traumas "more likely than not . . . caused him to have a panic disorder with anxiety and depression." The June 2018 PTSD Disability Benefits Questionnaire completed by the same psychologist indicated that the traumas experienced by the Veteran in service are the type that could cause symptoms of panic, anxiety, and depression. Although the psychologist's rationale linking the Veteran's panic disorder to in-service trauma is minimal, it is clear from context that she believes his psychiatric symptoms stem from the claimed stressors, and her opinion is supported by the STRs. Furthermore, the psychologist is a diplomate of the American Academy of Experts in Traumatic Stress and thus is skilled and experienced in identifying the types of trauma that cause certain psychiatric responses. For these reasons, the Board finds the January 2021 positive etiology opinion to be adequate and probative. In sum, the evidence of record shows that the Veteran has a current diagnosis of panic disorder and that he was treated panic disorder in service. Evidence also fails to show clearly and unmistakably that a psychiatric disorder preexisted service. Lastly, the record contains a non-probative negative opinion and a probative positive opinion. Thus, all elements of service connection are met with respect to a panic disorder and the benefit sought on appeal is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.