Citation Nr: 22016155 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-14 821 DATE: March 21, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, identified as PTSD and adjustment disorder with mixed anxiety and depressed mood ("psychiatric disorder" or PTSD), is granted. Entitlement to service connection for a back disability is denied. A disability rating of 10 percent, effective March 27, 2017 and of 30 percent from October 29, 2018, for benign positional paroxysmal vertigo (vertigo) is granted. FINDINGS OF FACT 1. The evidence of record shows that the Veteran's PTSD and adjustment disorder are related to his service. 2. The evidence is persuasively against a finding that the Veteran's back disability is related to his service. 3. The evidence shows that during the entire appeal period the Veteran suffered from occasional dizziness, and that on October 29, 2018, he suffered from dizziness with occasional staggering. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD and adjustment disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125. 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for a disability rating of 10 percent, effective March 27, 2017, and of percent, effective October 29, 2018, for vertigo, have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155(b), 3.400, 4.87, Diagnostic Code 6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from December 2001 to December 2002 and from January 2009 to March 2010; and in the Air Force from April 2013 to July 2013, from November 2013 to March 2014, and from June 2015 to September 2015. He is a veteran of the Gulf War Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal of the June 2018 and August 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). The Board notes that the Veteran's August 2018 notice of disagreement (NOD) included an appeal of the denial of his claim for entitlement to service connection for obstructive sleep apnea (OSA). This claim was granted in an April 2019 rating decision. As this was a full grant of the claim, the matter is no longer before the Board. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); 38 U.S.C. § 7104, 38 C.F.R. § 20.104. The Veteran and his wife appeared for a virtual Board hearing with the undersigned Veteran's Law Judge (VLJ) in November 2021(Board Hearing) and a copy of the transcript has been associated with the Veteran's file. Service Connection Establishing service connection generally requires 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 or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, 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 diabetes, 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, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There are particular requirements for establishing PTSD that are separate from and in addition to those for establishing service connection generally. 38 C.F.R. § 3.304(f); Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In order to be entitled to service connection for PTSD, there must be medical evidence of PTSD, medical evidence that establishes a link between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f); Shedden, 381 F.3d at 1167. However, separate corroboration of the existence of a required in-service stressor is not required when the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat. 38 C.F.R. § 3.304(f)(2). VA has conceded the Veteran's combat stressors qualify under this provision. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran claims that he suffers from an acquired psychiatric disorder, identified as PTSD and adjustment disorder with mixed anxiety and depressed mood ("psychiatric disorder" or PTSD). VA concedes that the Veteran has these disorders as current disabilities. Therefore, the question before the Board is whether they were caused by or are otherwise related to his service. The Board finds that they are. The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the issues in the claim and this appeal. While he was on active service, the Veteran was involved in an August 14, 2006, motor vehicle accident (MVA) in which he suffered serious injury to his neck and right shoulder, resulting in subsequent surgeries on both. He has been granted service connection for these injuries. In the June 2021 VA Initial PTSD examination provided to the Veteran, he was diagnosed with both PTSD and adjustment disorder with mixed anxiety and depressed mood. The examiner also indicated that it is not possible to differentiate which symptom(s) is/are attributable to each separate diagnosis. Three stressors were asserted by the Veteran, including the 2006 MVA, after which he spent several months in the hospital and had follow-on surgeries, a second incident where he was directly exposed to hostile fire, for which he earned the Combat Action Badge, and a third incident where he was in an aircraft which made a sudden and unexpected maneuver which jolted the aircraft, causing the Veteran to fall on his machine gun and cause everyone in the aircraft to believe it was going down. The VA examiner opined that the condition of chronic adjustment disorder is at least as likely as not the result of the Line of Duty MVA stressor event. In May 2021 VA received a private psychiatric PTSD Evaluation and Independent Medical Opinion from Dr. P.S., PsyD., dated March 25, 2021. Dr. P.S. diagnosed the Veteran with PTSD, with elevated levels of anxiety and depression. He also indicated that the Veteran has been diagnosed with TBI due to the 2006 MVA, which contributes to memory changes, impulsivity, anger, and personality changes with PTSD and other medical conditions. He indicated significant events related to this condition to include both the MVA and his combat deployments. Based on his review of the Veteran's file and his evaluation, Dr. P.S. opined that his PTSD was at least as likely as not (50 percent or greater probability) incurred in or caused by his military service. Based on the above diagnoses and positive nexus opinions from qualified examiners, the Board finds that the Veteran's acquired psychological disorder is related to his military service on a direct basis. The claim for entitlement to service connection for an acquired psychiatric disorder is granted. 2. Entitlement to service connection for a back disability. The Veteran claims entitlement to service connection for his back disability which began during or is otherwise due to his service. VA concedes that the Veteran has a currently diagnosed back disability of degenerative arthritis of the spine, specifically multilevel lumbar spine degenerative changes with L5-S1 degenerative disc disease, as diagnosed from a May 31, 2018, x-ray. See Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ), June 2018. He had a previous January 2002 diagnosis of thoracic muscle strain which was indicated as resolved. Id., see also January 30, 2002, STR entry, described below. Degenerative arthritis is a disease for which the chronic disability provisions of 38 C.F.R. §§ 3.307 and 3.309, apply. During his Board Hearing the Veteran testified that his back injury began in 2001 while he was in the service and that it has continued since then on an intermittent basis. See Hearing Transcript, page 6. He also stated that his 2006 motor vehicle accident (MVA) made his back condition worse. He also stated that his only treatment for this condition is that he takes ibuprofen. Id. His medical service treatment records (STRs) contain limited references to complaints of and treatment for back problems. In his April 7, 2001, Retention physical he indicated he had no back problems. Then, a January 30, 2002, entry records complaints of right shoulder and mid-back pain for two weeks due to his having fallen down some stairs, with an assessment of muscle strain. The medical records related to treatment for his August 14, 2006, MVA record show that he experienced several injuries, including significant neck and right shoulder problems with subsequent neck spine fusion and rotator cuff surgeries, for which he has been granted service connection and awarded disability ratings. However, these MVA related records do not indicate any back problems. After the 2006 MVA, there is a consistent representation by the Veteran on his numerous medical treatment and evaluation forms, i.e., repeated physical examinations, which indicate that he does not have any back problems or chronic back pain, and that he is in excellent health. This includes physical examinations and health assessments for annual checkups and for events such as reenlistment. For example, in a September 2012 medical assessment form he affirmatively indicated that he did then or ever had back pain. In his May 18, 2017, Annual Periodic Health Assessment, he affirmatively marked "NO/Does not apply to me" for the inquiry if he had recurring muscle, joint, or back pain. His October 24, 2017, Cumulative Medical record from December 1996 to October 2017 does not identify any back issues in either the list of active or inactive problems. There are no medical records of evidence which indicate the Veteran complained or, received treatment for or was diagnosed with any arthritis in the spine within one year of his separation form active service in September 2015. His VA treatment records similarly do not indicate a back condition prior to his May 31, 2018, x-ray which indicated the presence of degenerative arthritis of the spine. This x-ray was provided in conjunction with his VA back examination of the same date. His VA treatment records include entries of March 22, 2010, March 30, 2011, and March 26, 2012, in which the Veteran reported no back pain. The Veteran was provided a VA back disability examination on May 31, 2018. The VA examiner's summary of the Veteran's medical history referenced the January 30, 2002, in-service back muscle strain, as well as numerous entries related to his 2006 MVA for which his neck and right shoulder were noted as significant injuries. The examiner recorded that the Veteran claimed constant and dull right lower back pain since his 2006 MVA which varies in severity on flare-ups. The Veteran also claimed left lower back pain since 2011 which occurs when lifting and causes stabbing spasms in his left flank area. Consistent with his Board hearing testimony, he also stated that he has not had prior medical evaluation of his lower back condition The examiner recorded that there was no evidence of pain with range of motion testing or on weight bearing. As stated above, the Veteran was given an x-ray for his back, and from this the examiner identified his diagnosis of degenerative arthritis of the spine with L5-S1 degenerative disc disease. No other diagnosed back disabilities were noted. The examiner indicated that the Veteran's back condition did not have an impact on his ability to work. The VA examine provided an initial positive nexus opinion on June 1, 2018 but submitted a subsequent amended negative nexus opinion on June 16, 2018, which was requested for her to address the "Correia" criteria and the fact that the Veteran's arthritis was not diagnosed within one year of his separation. While the initial opinion stated a positive nexus opinion, the rationale provided indicated no relation between the current degenerative arthritis of the spine condition which his January 2002 thoracic spine strain. The examiner's rational stated the thoracic spine strain "resolved with no residuals as evidence by the [May] 2018 C&P exam as he was symptom free in the thoracic spine segment." The VA examiner further stated that his current disability is located in the lumbar spine segment, which is a different location than the thoracic strain noted in January 2002. The examiner summarized the rational stating that the thoracic muscle strain had resolved, but that his lumbar spine degenerative changes were caused by or incurred in service. However, there was no explanation given or facts cited to support the opinion that his current lumbar spine disability was related to his service. In the June 16, 2019 addendum VA medical opinion provided, the examiner now opined was that it was less likely than not (less than 50 percent likely) due to his in-service acute lumbar strain in January 2002 based on the rationale that the condition resolved with no residuals and that his current back disability relates to a different back location, the lumbar segment, instead of the previous thoracic segment, and that the previous sprain was a muscle injury, not a sinal injury. The examiner summarized her rationale stating that "a muscle strain to the upper back does not cause degenerative changes in the lower back." VA did not receive any private medical records related to the Veteran's claimed back condition, which is consistent with his Board Hearing testimony. The Veteran provided several written statements which do not provide much additional fact than what is noted above. However, in his August 2018 notice of disagreement (NOD) he stated that with respect to his lumbar disability he fell down the stairs at the hangar at Fort Bragg and was on a medical profile for that condition for which he was seen several times after the incident. He also stated that he felt the 2006 MVA accident aggravated the condition. All of this was while he was on active duty. Analysis The Board finds that the evidence is persuasively against a nexus between his current degenerative lumbar spine arthritic condition and his service or events which occurred during that time. Nor does the evidence permit application of the chronic disease presumptions as he was not shown to have a diagnosed back disability at all within one year of his separation from service in September 2015, which precludes a finding of a compensable rating during that period. 38 C.F.R. §§ 3.307, 3.309. Also, there was no continuity of symptoms during or after service as indicated by the lack of STR entries for complaints of or treatment for a back condition during the many years after either the January 2002 thoracic muscle strain or the August 2006 MVA, until his September 2015 separation. This finding is also supported by the Veteran's own testimony that he did not seek or receive treatment for a back condition during this time. The Board notes that lack of contemporaneous medical evidence alone is generally not enough to justify a denial of a claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). However, here we have the Veteran's own testimony on two different occasions and in two different settings that he did not seek treatment for his back. The Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, without specialized medical training a lay witness is not competent to either diagnose or make a nexus opinion concerning most medical conditions. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the medical treatment records related to his 2006 MVA do not indicate any back injury, only his neck and right shoulder injuries, which were significant, and for which the Veteran is receiving compensation based on separate disability ratings. The Veteran did not submit any private medical opinions which provided a positive nexus between his in-service events and his current back disability. Concerning the May 2019 VA examination and related medical opinions, the Board finds the initial opinion of June 1, 2019, to be inadequate as there was no factual basis to support the finding of a nexus between his current lumbar spine disability with his service, where his only in-service back related event was the January 2002 thoracic spine muscle strain, no injury to his lumbar spine segment. The Board finds the June 16, 2019, VA addendum medical opinion to be more probative in that the factual basis identified in the rationale to support the opinion was consistent with the rest of the competent evidence of record. Concerning the RO's request for an addendum opinion to address the "Correia" criteria, the Board finds that request to have been made without basis and that the issue is not relevant here. In Correia v. McDonald, the Court held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." 28 Vet. App. 158, 169-70 (U.S. 2016). The final sentence of 38 C.F.R. § 4.59 requires that for applicable VA examinations for painful motion "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The claimed issue here on appeal is entitlement to service connection for a back disability, which does not rest on the so called "Correia" criteria. Correia, 28 Vet. App. at 169 ("Read together, § 4.40 and § 4.45 demonstrate that particular information regarding the function of the joints is "essential" to permit an adjudicator to determine the proper disability rating for a joint disability.") (Emphasis added). Instead, the Correia criteria is considered to determine if there exists the presence of pain which may indicate a disability for service connection purposes, and for rating criteria. Here, the presence of a current disability has already been established based on x-ray evidence of degenerative arthritis, not pain. The VA examiner note the presence of no pain in the VA examination test results. As the Board finds that service connection is not warranted, the rating criteria aspects of the Correia criteria are not relevant. Finally, the Board finds to be without merit the assertion by the Veteran's representative that a new VA medical opinion must be obtained as the previous VA opinion differentiated between the Veteran's in-service thoracic spine muscle injury and his current lumbar disability. The representative further stated that there is a "recent BVA precedential decision saying that those are treated as the same, lumbar and thoracic spine." Hearing Transcript, page 4-5. He did not provide a copy of this alleged precedential decision or provide a citation thereto. First, Board decisions are not precedential decisions. 38 C.F.R. § 20.1303. Second, disability ratings are assigned to separate injuries, and there is a prohibition against assigning more than one rating for a single injury a prohibited practice called "pyramiding." 38 C.F.R. § 4.14. Here, the Veteran is already assigned separate disability ratings for his service-connected neck disabilities which resulted from the 2006 MVA. Finally, although differing spinal segment injuries may have the same criteria for determining the severity of the disability rating assigned, usually based on a limitation of motion, this fact does not permit transposing one injured spine segment to be considered an injury to a different spinal segment at a later date. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is persuasively against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The claim for entitlement to service connection on a direct basis for a back disability is denied. 3. Entitlement to an increased disability rating for vertigo. The Veteran seeks a disability rating higher than his initial and currently assigned non-compensable rating for his service-connected vertigo. As he has already been granted service connection, the only issue before the Board is the level of severity of this disability. Increased Ratings The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various differing disabilities. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Peripheral vestibular disorders are evaluated under Diagnostic Code 6204. Under Diagnostic Code 6204, a 10 percent rating is warranted for occasional dizziness and a 30 percent rating is warranted for dizziness and occasional staggering. 38 C.F.R. § 4.87, Diagnostic Code 6204. The 30 percent rating is the maximum rating allowed by law under this Diagnostic Code. Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under Diagnostic Code 6204, and hearing impairment or suppuration shall be separately rated and combined. Id. at Note. The Evidence of Record Although the issue before the Board is the level of severity of the Veteran's vertigo during the appeal period, which begins on October 11, 2017, the rating criteria unique to evaluating vertigo here does include a review of the presence of dizziness or staggering prior to this date to establish if the otherwise subjective symptoms do have an objective basis to support the higher rating. Id. In the June 2018 VA medical opinion, the VA examiner described the etiological history of this disability to support the opinion that the Veteran's vertigo was at least as likely as not related to his military service. Of particular note, the VA examiner indicated that the symptoms of vertigo experienced by the Veteran after his 2006 MVA appeared to have resolved after that injury. However, the VA examiner also stated that relevant medical literature supports a finding that vertigo can reoccur later as a result of head trauma. The VA examiner referenced the Veteran's medical records from May 2011 to support the overall opinion that the Veteran has a current disability of vertigo which is related to his in-service 2006 MVA. The May 2011 records were from the Veteran's private medical provider, Dr. S.R., an Ear, Nose, and Throat (ENT) specialist, who recorded that he had intermittent dizziness over the past year. He was given instructions on self-treatment for vertigo. Dr. S.R.'s treatment records also record that on October 9, 2015, the Veteran was again experiencing intermittent dizziness and vertigo over the last month. This treatment encounter was approximately two years prior to the Veteran's claim. A later October 29, 2018, note recorded that over the last 3 months the Veteran had experienced dizziness multiple times per day, along with a sense of staggering and room spinning. Dr. S.R.'s assessment was benign paroxysmal vertigo, left ear with dizziness and giddiness. In the Veteran's June 2018 Ear Conditions Disability Benefits Questionnaire (DBQ) the examiner recorded his medical history to include the 2006 MVA and follow-up treatment, and that following a mission in 2011 he again began to experience severe dizziness with looking up and that he needed to hold on to things to prevent falling. He then sought treatment and was given his diagnosis of benign positional paroxysmal vertigo at which time he was given home exercises to control these symptoms. He was noted to again have a severe recurrence in 2013. The examiner recorded that he experiences an occasional feeling of instability with imbalance when looking up. This was also recorded to be less than once per month with a duration of less than an hour. He was noted to not have any functional impact on his ability to work due to this disability. Based on the above, the Board finds that the Veteran did experience occasional dizziness during the entire appeal period. However, the evidence does not show that he exhibited dizziness with occasional staggering during the appeal period until it was recorded in the October 29, 2018, treatment record from Dr. S.R. This is the date on which the increase is shown to have occurred (date entitlement arose). 38 C.F.R. § § 3.400(o)(2); See also, Fenderson, 12 Vet. App. 119, Hart, 21 Vet. App. 505. The claim for an increased disability rating for vertigo is granted with an increase of his initial non-compensable rating to 10 percent disabling, effective March 27, 2017; and a subsequent staged rating increase to 30 percent disabling, effective October 29, 2018. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach 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.