Citation Nr: 22014684 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 10-11 076 DATE: March 14, 2022 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his back disability was incurred in or caused by military service. 2. The Veteran's acquired psychiatric disability is proximately due to or the result of his back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disability as secondary to a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to June 1973. He has also Army National Guard service from June 1973 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 and April 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge during an August 2013 hearing. A transcript of the hearing is associated with the Veteran's claim file. In January 2019, the Board denied the Veteran's claim for service connection for a back disability and an acquired psychiatric disability and entitlement to a TDIU. The Veteran appealed the portion of the January 2019 Board decision that denied entitlement to a back disability, an acquired psychiatric disability, and a TDIU to the United States Court of Appeals for Veterans Claims (Court). By way of an October 2019 Joint Motion for Partial Remand (JMPR), the parties agreed that remand was warranted as the Board relied on a VA examination that failed to adequately address the Veteran's lay statements regarding the onset of his low back pain. Additionally, the parties agreed that the Board did not consider whether service connection was warranted for a psychiatric disability other than posttraumatic stress disorder (PTSD). Remand was warranted for entitlement to a TDIU as it was found to be inextricably intertwined with the appeals for service connection for a back disability and an acquired psychiatric disability. This matter was before the Board again in April 2020, wherein the Board remanded for additional VA examinations and medical opinions. The matter has returned to the Board for adjudication. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as headaches, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is considered such a chronic disease and falls within the scope of 38 C.F.R. § 3.309(a). Secondary service connection may be established 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). Substantiating a secondary service connection claim requires competent evidence of: (1) a diagnosis of the disability for which service connection is being sought; (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance in the 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. 1. Entitlement to service connection for a back disability The Veteran asserts that his back disability is related to his military service, specifically, due to a fall while carrying heavy equipment on his back. The Veteran has been diagnosed with degenerative arthritis of the lumbar and thoracic spine. See August 2016 VA examination. He was diagnosed with degenerative disc disease and intervertebral disc syndrome at the April 2021 VA examination. The Veteran has a current diagnosis related to his back disability and thus, the first element of service connection has been met. Regarding the second element for service connection, an in-service event, the Veteran has consistently stated that his back problems started in service after he feel backwards in full gear and carrying a heavy radio on his back. The Veteran testified that he went to see the corpsman for his back and was given some Ibuprofen. See April 2013 Board hearing transcript at pg. 19-20. The Veteran stated that he was the company radioman and had to carry his regular gear, two spare batteries, and a heavy radio. While in Panama on a training exercise, he fell down an incline and injured his back and broke his tail bone. See November 2007 Statement in Support of Claim. A review of the Veteran's military personnel records document that he served as a radio operator for part of his military service. The Veteran's service treatment records (STRs) are silent as to any complaints or treatment for a back condition. However, while unclear as to the specific location, the STRs do note that "broken bone" was checked off on the Veteran's separation examination. The Veteran is also competent to report that he experienced symptoms of back pain after his fall. As such, the Board finds that the second element for service has been met, as there has been an in-service event, reported by the Veteran as a fall from service with his full gear and heavy radio. Turning to the third element of service connection, a nexus between the claimed in-service disease or injury and present disability, the Board finds that the Veteran has competently and credibly asserted that the condition began in service and has continued to assert that there has been continuity of the same symptomatology since service. When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran's statements are also credible as he has consistency reported that he had back pain during service and up until the present time. The October 2019 JMPR had found that the August 2016 examiner had relied solely on the absence of complaints in the Veteran's STRs and did not consider whether his back disability was related to his reports of carrying heavy equipment during service that caused lower back pain. The matter was remanded to obtain a new VA opinion regarding the etiology of the Veteran's back disability. An addendum opinion was obtained in April 2021. The Board acknowledges that the April 2021 VA examiner rendered a negative nexus opinion as to whether the Veteran's back disability was related to active service. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's records are silent for back pain or related issues during active duty. There was no radiology evidence of disruption to the articular surface of the joint at the time of the injury; therefore, the degenerative joint disease is most likely a natural aging process. She stated that the first instance that back issues are mentioned is in a chiropractic note post service, which noted that the Veteran has lumbar and sacrum subluxation, but nothing regarding his tailbone. The examiner found that there is lack of evidence of record to support the claim of his current degenerative disc disease and intervertebral disc syndrome being caused by carrying heavy equipment during service. She concluded that since there is no supportive evidence supporting causation or chronicity, it is less likely than not that the Veteran's spinal degenerative disc disease or intervertebral disc syndrome was caused by carrying heavy loads during service and a nexus has not been established. Though, like the previous examiner from August 2016, the April 2021 VA examiner provided a negative nexus opinion based on lack of treatment for a back injury and lack of chronicity from service to the present. She did not discuss the Veteran's statements about him having to carry heavy equipment during service and found that there is no supportive evidence regarding causation or chronicity. The October 2019 JMPR specifically stated that the examiner was to consider the Veteran's report of him having to carry heavy equipment during service, but instead, the examiner found that due to an absence of medical records, that there was no nexus regarding the back disability and the Veteran having to carry a heavy load. Therefore, the April 2021 VA medical opinion is inadequate and weighs against the claim. The Veteran is competent to report about his back pain and history since it consists of readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Furthermore, he has indicated that his back pain has started since service and has continued since service. There is no evidence to suggest that the Veteran is an unreliable historian. There is also no evidence of any intercurrent cause regarding a back injury. With these considerations, the Board finds that the Veteran's reports about a continuity of symptomatology beginning in service are probative to show a relationship to service for the current back disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (lay evidence may be sufficient in and of itself to substantiate a service connection claim). In sum, the Board will resolve reasonable doubt in the Veteran's favor to find that his back disability, currently diagnosed as degenerative disc disease and intervertebral disc syndrome, is attributable to the Veteran having to carry around heavy equipment, including his radio and falling with his gear and radio. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the Board finds that a grant of service connection for a back disability is warranted. 2. Entitlement to service connection for an acquired psychiatric disorder The Veteran initially claimed service connection for depression in March 2007 and PTSD in November 2009. The Board has recharacterized the issue on appeal as entitlement to service for an acquired psychiatric disorder. The claim encompasses any diagnosed acquired psychiatric disorders, and thus, has been recharacterized. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Since the Board is granting service connection on a secondary basis, the discussion will be limited to secondary service connection. The January 2019 Board decision that denied the Veteran's claim for service connection for an acquired psychiatric disability had relied on a July 2018 VA examination in which the examiner concluded the Veteran does not have a diagnosis of PTSD, but instead substance abuse disorder and that service connection cannot be granted for substance abuse. The parties to the October 2019 JMPR agreed that remand for the issue was warranted because the Board did not set forth an adequate statement of reasons or bases regarding whether the Veteran had a psychiatric diagnosis other than PTSD, which does not require a verified in-service stressor. Furthermore, the parties noted that an October 2006 VA consult diagnosed depression secondary to medical conditions. The matter was remanded as the January 2019 Board decision did not consider whether service connection was warranted for a psychiatric disability other than PTSD. Pursuant to the October 2019 JMPR, the April 2020 Board decision remanded the issue to obtain a new VA examination that addresses all his psychiatric diagnoses. The Veteran was afforded an examination in October 2021. He was diagnosed with mild neurocognitive disorder due to multiple etiologies, unspecified anxiety disorder, and somatic symptom disorder (SSD) with predominant pain. The examiner explained that the diagnosis of SSD is related to experience of pain arising from his back and diabetic neuropathy. The diagnosis of neurocognitive disorder predates his recent stroke and there are multiple potentially contributing factors to his cognitive problems including diabetes and hypertension as well as his quite elaborate medication regimen. The examiner also stated that the symptoms associated with SSD include preoccupation with pain and its relief, unspecified anxiety disorder symptoms include focus on his experience of anxiety including sleep problems and strategies designed to seek relief, and the symptoms associated with mild neurocognitive disorder include memory impairment. The examiner stated that there are complicated and exacerbating relationships between the assorted disorders and that it was not possible to differentiate which impairment is caused by each disorder given the exacerbating relationships between his disorders, a response in this area would require unwarranted speculation. The October 2021 examiner also found that the Veteran did not meet the criteria for a diagnosis of PTSD and his current diagnoses appear related to his assorted medical conditions, experience of pain and consequent anxiety. Upon review of the record, the Board finds that the Veteran's acquired psychiatric disorder is in part, a result of his now service-connected back disability. The October 2021 examiner indicated that the Veteran has multiple psychiatric diagnoses and that he cannot differentiate which impairment is caused by each disorder given the exacerbating relationships between his disorders. The examiner ultimately concluded that the SSD is due to his pain arising from his back and diabetic neuropathy. Although the Veteran is not service connected for diabetic neuropathy, he is service connected for his back disability. Furthermore, his neurocognitive disorder is in part due to his elaborate medication regimen. The Veteran had reported at the April 2021 VA examination for his back disability that he takes hydrocodone every 8 hours. The Veteran has other medication he takes for his other non-service-connected conditions; however, the record also shows that he is also taking medication for his service-connected back disability. The Veteran's unspecified anxiety disorder symptoms stem from his focus on his experience of anxiety including strategies designed to seek relief from pain, in which the examiner had earlier stated that his pain is in part due to his back condition. As such, the Veteran's acquired psychiatric disorder, diagnosed as mild neurocognitive disorder, unspecified anxiety disorder, and SSD with predominant pain, is granted on a secondary basis, due to his service-connected back disability. This finding is also consistent with the 2006 VA consult in which it was noted that the Veteran had depression secondary to medical conditions, as indicated in the October 2019 JMPR. In reaching this conclusion, the Board has reviewed the available lay statements, his medical history, and the available medical opinions. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder is warranted. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to a TDIU The Veteran contends that he is entitled to a TDIU as his service-connected disabilities prevents him from following a substantially gainful occupation. The Board finds that the assignment of an initial rating that will be implemented by the RO for the Veteran's now service-connected back disability and acquired psychiatric disability could have a significant impact on his TDIU claim. In this regard, consideration of the TDIU issue must be deferred pending the RO implementation of the Board's grant of service connection for his back disability and an acquired psychiatric disability, and assignment of an initial rating. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board finds that the initial rating for his back disability and acquired psychiatric disability must be adjudicated by the RO prior to appellate consideration of entitlement to a TDIU. The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. The RO must issue a rating decision and assign an initial rating for both the Veteran's service-connected back disability and acquired psychiatric disability. 3. After completing the above actions, the Veteran's claim for entitlement to a TDIU should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. After allowing an appropriate amount of time for response, return the case to the Board for review. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.