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Citation Nr: 1549197
Decision Date: 11/20/15    Archive Date: 11/25/15

DOCKET NO.  12-04 867A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUES

1. Entitlement to service connection for spondylolisthesis of the L5-S1 with bilateral pars interarticularis defect (back condition).

2. Entitlement to service connection for acquired psychiatric conditions to include, posttraumatic stress disorder (PTSD) and depression, as secondary to a claimed back condition.

3. Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	John R. Worman, Esquire

ATTORNEY FOR THE BOARD

Zi-Heng Zhu, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from May 1972 to June 1972.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2009 and August 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. The evidence does not demonstrate, clearly and unmistakably, that the Veteran's current back condition clearly and unmistakably pre-existed his military service.

2. Resolving all benefit-of-the-doubt in favor of the Veteran, the evidence of record is at least in equipoise relating to the Veteran's back condition and his injury during his active military service.

3. Resolving all benefit of the doubt in the Veteran's favor, the Veteran's acquired psychiatric conditions, to include PTSD and depression, are related to/aggravated by the Veteran's now service-connected back condition.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a back condition have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304(b), 3.306, 3.307, 3.309, 3.310 (2015).

2. The criteria for entitlement to service connection for an acquired psychiatric condition, to include PTSD and depression, as secondary to a service-connected back condition, have been met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307(a)(6), 3.309(e).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection - Back Condition

The Veteran asserts that his current diagnosed back condition is due to an injury he incurred while performing maneuvers during boot-camp during his military service. The Board finds that a review of the evidence of record, to include competent private and VA medical opinions, service treatment records (STRs), and lay statements, reveals that the Veteran's condition is etiologically related to the injury he sustained during service. As such, the Veteran's claim for service connection must be granted.

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); see also Jandreau, 492 F.3d 1372 (Fed. Cir. 2007).

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment; or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b). Thus, there is a rebuttable presumption of soundness unless a condition is noted at entry. However, the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it pre-existed service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

The Board notes that the Veteran has continuously contended that his current symptomatic back condition was related or aggravated by an incident during service where his squad was instructed to jump into foxholes during a training exercise and another solider, who jumped into the same foxhole, landed on his back.

As an initial matter, the Board finds that the evidence does not demonstrate that the Veteran's back condition clearly and unmistakably pre-existed his period of active duty service, and that there is certainly no clear and unmistakable evidence that the any such condition was not aggravated during his service. Preliminarily, the Board notes that the Veteran enlisted in May 1972, entry examinations in his STRs noted no issues or pre-existing problems with his back upon entry. The report of medical history, completed by the Veteran himself also noted no issues with his back.

In June 1972, only a few weeks after entering service, the STRs reveal that the Veteran reported to sick-call with lower back pain (denoted as LBP). Further treatment records for that time period noted treatment and testing for his back injury he sustained during training. Later in June 1972, the Veteran's condition was evaluated by the Army Medical Board, where it was determined that the Veteran's back condition rendered him physically unfit for active service, and he was subsequently discharged from service. The Medical Board's decision also noted that the Veteran's condition was believed to have prevented him from physical civilian work prior to service.

Related to this claim, the VA afforded the Veteran with two VA Compensation and Pension (C&P) examinations in May 2009 and January 2015. Upon examination of the Veteran and his medical history, both VA examiners initially noted that the Veteran's back condition more likely than not pre-existed his service. However, the Board finds that neither examiner provided an adequate level of affirmation of the Veteran's pre-existing condition to rebut the Veteran's presumption of soundness. In other words, the level of standard to rebut the Veteran's presumption of soundness is clear and unmistakable, a far cry from as least likely as not. Short of that standard of proof and rationale offered by an examiner, such rebuttal under 38 U.S.C.A. § 1111, cannot succeed.

To this end, the Board notes that the Veteran has submitted several lay statements from his co-worker/classmates and his sports coach during high school, noting that they witnessed and knew of no evidence that the Veteran suffered from any type of back condition. While the Board understands that both such statements come from lay persons without the appropriate medical background and training to diagnose a back condition, the Board finds that such statements remain probative because of the circumstance of their, then, relationship. In other words, the Board finds that as the Veteran's football teammate during high school, and his coach for football and track and field, both lay persons have a unique perspective in evaluating any restrictions of the Veteran's physical abilities. In the same vein, the Board notes that the Veteran graduated from high school in 1971, only a year before enlisting. Such temporal proximity only increases the validity and weight of the probative value of such statements establishing a sound physical condition prior to entering his active service.

Finally, the weight of the competent evidence does not demonstrate that the Veteran's back condition was clearly and unmistakably not aggravated during service; or the second prong of rebutting the presumption of soundness. In fact, the January 2015 VA examiner has also opined, that the injury in service did in fact aggravate/exacerbated any back condition the Veteran may or may not have had. As such, the Board finds that the evidence of record does not rise to the level as to rebut the presumption of soundness and an evaluation of service connection, on a direct basis must be made.

As noted above, the threshold question for service connection must be the existence of a current disability. To this end, the Board finds that the Veteran has been diagnosed with a back condition, specifically spondylolisthesis of the L5-S1 with bilateral pars interarticularis defect. This diagnosis has been confirmed by VA examiners as well as the Veteran's treating physicians and medical professionals. Therefore, the first element of service connection has been satisfied.
The second prong of an in-service injury or incurrence is also well documented in the Veteran's STRs. Specifically, notes in the Veteran's STRs indicated the Veteran injured his back and suffered from low back pain during service. The Veteran has also consistently reported that his back was injured when a fellow solider jumped into the same foxhole he was in and landed on his back. Such evidence is ample to satisfy the in-service element for service connection.

Finally, the third prong to establish service connection, also known as the nexus element, has also been established by the evidence of record. Here, there are both positive and negative medical opinions, regarding the Veteran's current back condition.

Regarding a nexus, the Board notes that the Veteran has submitted a private medical opinion from his treating medical professional, who attests to the fact that the Veteran's current back condition was aggravated/exacerbated, or otherwise caused, by his injury to his back during service. Specifically, the Veteran's long time chiropractor, F. A., found that the Veteran's current symptomatic condition was caused by a trauma, such as that described during his military service, and that such force exacerbated/caused his current back condition. See Medical Opinion from F. A., D. C., dated July 22, 2008.

Conversely, the VA has also obtained two medical opinions that are seemingly against the above private opinion regarding nexus. The Veteran was afforded two VA C&P examination for this condition in May 2009 and January 2015. In both examination reports, the VA examiner concluded that the Veteran's current condition was simply a continuation of his back condition that pre-existed his active military service. In both instances, the VA examiners specifically cited the Army Medical Board findings of June 1972 that the Veteran was never actually physically fit for active service. Therefore, both VA examiners opined that such back condition could not be solely caused by the Veteran's injury during service.

The Veteran was afforded the first of these examinations in May 2009, the examiner, after reviewing the claims file and examining the Veteran's back, concluded that the Veteran's condition pre-existed his military service. However, the Board finds that this examiner's opinion to be inadequate. The VA examiner failed to provide any rationale regarding his conclusion that the Veteran's back condition pre-existed his military service, as he based his nexus conclusion solely on the Army Medical Boards evaluation. That examiner also failed to provide any opinion regarding any aggravating/exacerbating effects the Veteran's in-service injury may have had on his current condition. As such, this opinion is inadequate and carries little probative weight.

The Veteran's second VA C&P examination, in January 2015, provides a confusing and nearly contradictory conclusion and rationale. Specifically, the examiner concluded that it was less likely than not that the Veteran's condition was incurred or caused by the claimed in-service injury, explaining that such condition was not caused by an acute injury. However, later in the report, the examiner also noted in another worksheet that the condition was not proximately due to any service-connected disability, and explicitly opined that the Veteran's present back condition "appears to be due to his back injury of June 1972," during his active duty service, as well as post-service back injuries. The Board finds that two opinions to be at best inadequate and nearly contradictory, offering almost a positive nexus opinion in the latter opinion. As such, the Board finds that this opinion, like the VA examination preceding it, to be inadequate and offers little probative value.

Consequently, the Board finds that the evidence of record is at least in equipoise regarding a nexus between the Veteran's current condition and his injury during his military service. Therefore, in affording the Veteran the benefit-of-the-doubt, the Veteran's claim of service connection for a back condition must be granted.

Service Connection - Acquired Psychiatric Condition, PTSD

The Veteran claims, essentially, that his PTSD, or any acquired psychiatric condition, to include major depressive disorder, is due to his back condition, which has been service connected herein. The Board has construed the claim in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009) (observing that when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim). The Board notes that competent medical evidence of record, which includes a positive nexus opinion from a private psychiatrist, reveals that the Veteran's psychiatric conditions are in fact proximately caused/aggravated by the Veteran's, now, service-connected back condition. Therefore, the Veteran's claim for service connection must be granted.

A claim for secondary service connection requires medical evidence that connects the asserted secondary disability to the service-connected disability. See Velez v. West, 11 Vet. App. 148, 158 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Here, the Veteran has provided a February 2013 private psychiatric evaluation from a board certified psychologist, Dr. J. C. After conducting a thorough interview of the Veteran, as well as reviewing his claims file, and medical history, the examiner noted an Axis I diagnosis of PTSD, as well as an Axis II diagnosis of major depressive disorder, with history of traumatic brain trauma. While the examiner noted that the Veteran suffered psychologically traumatic events when he was a child, and was abused, the examiner, significantly, concluded that the Veteran's depression was aggravated by his back condition, which is now service connected.  To this end, the examiner explicitly noted that the Veteran, essentially, shuts down when his back starts hurting and just does not want to leave his bed. The examiner concludes that this not only affects his motivation, but also would prevent him from doing any work. Therefore, he concludes that his service-connected back condition does in fact aggravate his depression.

The Board finds this medical examination to be highly probative and dispositive of the inquiry at hand. The conclusion is accurately provided, along with a rationale and full review and analysis of the medical and psychiatric history of the Veteran. Indeed, the examination report is even completed on a VA psychiatric evaluation form, VA Form 21-0960P-2; and it is the only medical opinion of record.

As noted above, secondary service connection can also be established if the claimed condition was aggravated by a service-connected condition. Here, the only medical evidence of record shows that the Veteran's depression, and other undistinguishable psychiatric conditions, to include PTSD, was/has been aggravated by his, now, service-connect back condition. Therefore, the Board finds that service connection for his psychiatric conditions is warranted, and the claim must be granted.

ORDER

Entitlement to service connection for a back condition is granted.

Entitlement to service connection for an acquired psychiatric condition, to include PTSD and major depressive disorder, as secondary to service-connected back condition is granted.

REMAND

The Board finds that additional evidentiary development is necessary before the Board can adjudicate the Veteran's claim for a TDIU. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.

As the level of rating for the granted claims of service connection decided herein, is relevant to the Veteran's TDIU request, as they are the only service-connected disabilities awarded to the Veteran, this issue must be considered inextricably intertwined. Therefore, the Veteran's request for a TDIU must be remanded as they are intertwined with the determinations of ratings for his now service-connected conditions. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together).

Accordingly, the case is REMANDED for the following action:

1. When disability ratings and effective dates have been determined for all service-connected disabilities, to include those granted herein, and all development that the RO deems necessary is undertaken, the Veteran's request for a TDIU should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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text: no

text: clear

text: and

text: unmistakable

text: evidence

text: that

text: the

text: any

text: such

text: condition

text: was

text: not

text: aggravated

text: during

text: his

text: service

text: Preliminarily

text: the

text: Board

text: notes

text: that

text: the

text: Veteran

text: enlisted

text: in

text: May

text: entry

text: examinations

text: in

text: his

text: STRs

text: noted

text: no

text: issues

text: or

text: pre

text: existing

text: problems

text: with

text: his

text: back

text: upon

text: entry

text: The

text: report

text: of

text: medical

text: history

text: completed

text: by

text: the

text: Veteran

text: himself

text: also

text: noted

text: no

text: issues

text: with

text: his

text: back

text: In

text: June

text: only

text: a

text: few

text: weeks

text: after

text: entering

text: service

text: the

text: STRs

text: reveal

text: that

text: the

text: Veteran

text: reported

text: to

text: sick

text: call

text: with

text: lower

text: back

text: pain

text: denoted

text: as

text: LBP

text: Further

text: treatment

text: records

text: for

text: that

text: time

text: period

text: noted

text: treatment

text: and

text: testing

text: for

text: his

text: back

text: injury

text: he

text: sustained

text: during

text: training

text: Later

text: in

text: June

text: the

text: Veteran

text: s

text: condition

text: was

text: evaluated

text: by

text: the

text: Army

text: Medical

text: Board

text: where

text: it

text: was

text: determined

text: that

text: the

text: Veteran

text: s

text: back

text: condition

text: rendered

text: him

text: physically

text: unfit

text: for

text: active

text: service

text: and

text: he

text: was

text: subsequently

text: discharged

text: from

text: service

text: The

text: Medical

text: Board

text: s

text: decision

text: also

text: noted

text: that

text: the

text: Veteran

text: s

text: condition

text: was

text: believed

text: to

text: have

text: prevented

text: him

text: from

text: physical

text: civilian

text: work

text: prior

text: to

text: service

text: Related

text: to

text: this

text: claim

text: the

text: VA

text: afforded

text: the

text: Veteran

text: with

text: two

text: VA

text: Compensation

text: and

text: Pension

text: C

text: P

text: examinations

text: in

text: May

text: and

text: January

text: Upon

text: examination

text: of

text: the

text: Veteran

text: and

text: his

text: medical

text: history

text: both

text: VA

text: examiners

text: initially

text: noted

text: that

text: the

text: Veteran

text: s

text: back

text: condition

text: more

text: likely

text: than

text: not

text: pre

text: existed

text: his

text: service

text: However

text: the

text: Board

text: finds

text: that

text: neither

text: examiner

text: provided

text: an

text: adequate

text: level

text: of

text: affirmation

text: of

text: the

text: Veteran

text: s

text: pre

text: existing

text: condition

text: to

text: rebut

text: the

text: Veteran

text: s

text: presumption

text: of

text: soundness

text: In

text: other

text: words

text: the

text: level

text: of

text: standard

text: to

text: rebut

text: the

text: Veteran

text: s

text: presumption

text: of

text: soundness

text: is

text: clear

text: and

text: unmistakable

text: a

text: far

text: cry

text: from

text: as

text: least

text: likely

text: as

text: not

text: Short

text: of

text: that

text: standard

text: of

text: proof

text: and

text: rationale

text: offered

text: by

text: an

text: examiner

text: such

text: rebuttal

text: under

text: U

text: S

text: C

text: A

text: cannot

text: succeed

text: To

text: this

text: end

text: the

text: Board

text: notes

text: that

text: the

text: Veteran

text: has

text: submitted

text: several

text: lay

text: statements

text: from

text: his

text: co

text: worker

text: classmates

text: and

text: his

text: sports

text: coach

text: during

text: high

text: school

text: noting

text: that

text: they

text: witnessed

text: and

text: knew

text: of

text: no

text: evidence

text: that

text: the

text: Veteran

text: suffered

text: from

text: any

text: type

text: of

text: back

text: condition

text: While

text: the

text: Board

text: understands

text: that

text: both

text: such

text: statements

text: come

text: from

text: lay

text: persons

text: without

text: the

text: appropriate

text: medical

text: background

text: and

text: training

text: to

text: diagnose

text: a

text: back

text: condition

text: the

text: Board

text: finds

text: that

text: such

text: statements

text: remain

text: probative

text: because

text: of

text: the

text: circumstance

text: of

text: their

text: then

text: relationship

text: In

text: other

text: words

text: the

text: Board

text: finds

text: that

text: as

text: the

text: Veteran

text: s

text: football

text: teammate

text: during

text: high

text: school

text: and

text: his

text: coach

text: for

text: football

text: and

text: track

text: and

text: field

text: both

text: lay

text: persons

text: have

text: a

text: unique

text: perspective

text: in

text: evaluating

text: any

text: restrictions

text: of

text: the

text: Veteran

text: s

text: physical

text: abilities

text: In

text: the

text: same

text: vein

text: the

text: Board

text: notes

text: that

text: the

text: Veteran

text: graduated

text: from

text: high

text: school

text: in

text: only

text: a

text: year

text: before

text: enlisting

text: Such

text: temporal

text: proximity

text: only

text: increases

text: the

text: validity

text: and

text: weight

text: of

text: the

text: probative

text: value

text: of

text: such

text: statements

text: establishing

text: a

text: sound

text: physical

text: condition

text: prior

text: to

text: entering

text: his

text: active

text: service

text: Finally

text: the

text: weight

text: of

text: the

text: competent

text: evidence

text: does

text: not

text: demonstrate

text: that

text: the

text: Veteran

text: s

text: back

text: condition

text: was

text: clearly

text: and

text: unmistakably

text: not

text: aggravated

text: during

text: service

text: or

text: the

text: second

text: prong

text: of

text: rebutting

text: the

text: presumption

text: of

text: soundness

text: In

text: fact

text: the

text: January

text: VA

text: examiner

text: has

text: also

text: opined

text: that

text: the

text: injury

text: in

text: service

text: did

text: in

text: fact

text: aggravate

text: exacerbated

text: any

text: back

text: condition

text: the

text: Veteran

text: may

text: or

text: may

text: not

text: have

text: had

text: As

text: such

text: the

text: Board

text: finds

text: that

text: the

text: evidence

text: of

text: record

text: does

text: not

text: rise

text: to

text: the

text: level

text: as

text: to

text: rebut

text: the

text: presumption

text: of

text: soundness

text: and

text: an

text: evaluation

text: of

text: service

text: connection

text: on

text: a

text: direct

text: basis

text: must

text: be

text: made

text: As

text: noted

text: above

text: the

text: threshold

text: question

text: for

text: service

text: connection

text: must

text: be

text: the

text: existence

text: of

text: a

text: current

text: disability

text: To

text: this

text: end

text: the

text: Board

text: finds

text: that

text: the

text: Veteran

text: has

text: been

text: diagnosed

text: with

text: a

text: back

text: condition

text: specifically

text: spondylolisthesis

text: of

text: the

text: L

text: S

text: with

text: bilateral

text: pars

text: interarticularis

text: defect

text: This

text: diagnosis

text: has

text: been

text: confirmed

text: by

text: VA

text: examiners

text: as

text: well

text: as

text: the

text: Veteran

text: s

text: treating

text: physicians

text: and

text: medical

text: professionals

text: Therefore

text: the

text: first

text: element

text: of

text: service

text: connection

text: has

text: been

text: satisfied

text: The

text: second

text: prong

text: of

text: an

text: in

text: service

text: injury

text: or

text: incurrence

text: is

text: also

text: well

text: documented

text: in

text: the

text: Veteran

text: s

text: STRs

text: Specifically

text: notes

text: in

text: the

text: Veteran

text: s

text: STRs

text: indicated

text: the

text: Veteran

text: injured

text: his

text: back

text: and

text: suffered

text: from

text: low

text: back

text: pain

text: during

text: service

text: The

text: Veteran

text: has

text: also

text: consistently

text: reported

text: that

text: his

text: back

text: was

text: injured

text: when

text: a

text: fellow

text: solider

text: jumped

text: into

text: the

text: same

text: foxhole

text: he

text: was

text: in

text: and

text: landed

text: on

text: his

text: back

text: Such

text: evidence

text: is

text: ample

text: to

text: satisfy

text: the

text: in

text: service

text: element

text: for

text: service

text: connection

text: Finally

text: the

text: third

text: prong

text: to

text: establish

text: service

text: connection

text: also

text: known

text: as

text: the

text: nexus

text: element

text: has

text: also

text: been

text: established

text: by

text: the

text: evidence

text: of

text: record

text: Here

text: there

text: are

text: both

text: positive

text: and

text: negative

text: medical

text: opinions

text: regarding

text: the

text: Veteran

text: s

text: current

text: back

text: condition

text: Regarding

text: a

text: nexus

text: the

text: Board

text: notes

text: that

text: the

text: Veteran

text: has

text: submitted

text: a

text: private

text: medical

text: opinion

text: from

text: his

text: treating

text: medical

text: professional

text: who

text: attests

text: to

text: the

text: fact

text: that

text: the

text: Veteran

text: s

text: current

text: back

text: condition

text: was

text: aggravated

text: exacerbated

text: or

text: otherwise

text: caused

text: by

text: his

text: injury

text: to

text: his

text: back

text: during

text: service

text: Specifically

text: the

text: Veteran

text: s

text: long

text: time

text: chiropractor

text: F

text: A

text: found

text: that

text: the

text: Veteran

text: s

text: current

text: symptomatic

text: condition

text: was

text: caused

text: by

text: a

text: trauma

text: such

text: as

text: that

text: described

text: during

text: his

text: military

text: service

text: and

text: that

text: such

text: force

text: exacerbated

text: caused

text: his

text: current

text: back

text: condition

text: See

text: Medical

text: Opinion

text: from

text: F

text: A

text: D

text: C

text: dated

text: July

text: Conversely

text: the

text: VA

text: has

text: also

text: obtained

text: two

text: medical

text: opinions

text: that

text: are

text: seemingly

text: against

text: the

text: above

text: private

text: opinion

text: regarding

text: nexus

text: The

text: Veteran

text: was

text: afforded

text: two

text: VA

text: C

text: P

text: examination

text: for

text: this

text: condition

text: in

text: May

text: and

text: January

text: In

text: both

text: examination

text: reports

text: the

text: VA

text: examiner

text: concluded

text: that

text: the

text: Veteran

text: s

text: current

text: condition

text: was

text: simply

text: a

text: continuation

text: of

text: his

text: back

text: condition

text: that

text: pre

text: existed

text: his

text: active

text: military

text: service

text: In

text: both

text: instances

text: the

text: VA

text: examiners

text: specifically

text: cited

text: the

text: Army

text: Medical

text: Board

text: findings

text: of

text: June

text: that

text: the

text: Veteran

text: was

text: never

text: actually

text: physically

text: fit

text: for

text: active

text: service

text: Therefore

text: both

text: VA

text: examiners

text: opined

text: that

text: such

text: back

text: condition

text: could

text: not

text: be

text: solely

text: caused

text: by

text: the

text: Veteran

text: s

text: injury

text: during

text: service

text: The

text: Veteran

text: was

text: afforded

text: the

text: first

text: of

text: these

text: examinations

text: in

text: May

text: the

text: examiner

text: after

text: reviewing

text: the

text: claims

text: file

text: and

text: examining

text: the

text: Veteran

text: s

text: back

text: concluded

text: that

text: the

text: Veteran

text: s

text: condition

text: pre

text: existed

text: his

text: military

text: service

text: However

text: the

text: Board

text: finds

text: that

text: this

text: examiner

text: s

text: opinion

text: to

text: be

text: inadequate

text: The

text: VA

text: examiner

text: failed

text: to

text: provide

text: any

text: rationale

text: regarding

text: his

text: conclusion

text: that

text: the

text: Veteran

text: s

text: back

text: condition

text: pre

text: existed

text: his

text: military

text: service

text: as

text: he

text: based

text: his

text: nexus

text: conclusion

text: solely

text: on

text: the

text: Army

text: Medical

text: Boards

text: evaluation

text: That

text: examiner

text: also

text: failed

text: to

text: provide

text: any

text: opinion

text: regarding

text: any

text: aggravating

text: exacerbating

text: effects

text: the

text: Veteran

text: s

text: in

text: service

text: injury

text: may

text: have

text: had

text: on

text: his

text: current

text: condition

text: As

text: such

text: this

text: opinion

text: is

text: inadequate

text: and

text: carries

text: little

text: probative

text: weight

text: The

text: Veteran

text: s

text: second

text: VA

text: C

text: P

text: examination

text: in

text: January

text: provides

text: a

text: confusing

text: and

text: nearly

text: contradictory

text: conclusion

text: and

text: rationale

text: Specifically

text: the

text: examiner

text: concluded

text: that

text: it

text: was

text: less

text: likely

text: than

text: not

text: that

text: the

text: Veteran

text: s

text: condition

text: was

text: incurred

text: or

text: caused

text: by

text: the

text: claimed

text: in

text: service

text: injury

text: explaining

text: that

text: such

text: condition

text: was

text: not

text: caused

text: by

text: an

text: acute

text: injury

text: However

text: later

text: in

text: the

text: report

text: the

text: examiner

text: also

text: noted

text: in

text: another

text: worksheet

text: that

text: the

text: condition

text: was

text: not

text: proximately

text: due

text: to

text: any

text: service

text: connected

text: disability

text: and

text: explicitly

text: opined

text: that

text: the

text: Veteran

text: s

text: present

text: back

text: condition

text: appears

text: to

text: be

text: due

text: to

text: his

text: back

text: injury

text: of

text: June

text: during

text: his

text: active

text: duty

text: service

text: as

text: well

text: as

text: post

text: service

text: back

text: injuries

text: The

text: Board

text: finds

text: that

text: two

text: opinions

text: to

text: be

text: at

text: best

text: inadequate

text: and

text: nearly

text: contradictory

text: offering

text: almost

text: a

text: positive

text: nexus

text: opinion

text: in

text: the

text: latter

text: opinion

text: As

text: such

text: the

text: Board

text: finds

text: that

text: this

text: opinion

text: like

text: the

text: VA

text: examination

text: preceding

text: it

text: to

text: be

text: inadequate

text: and

text: offers

text: little

text: probative

text: value

text: Consequently

text: the

text: Board

text: finds

text: that

text: the

text: evidence

text: of

text: record

text: is

text: at

text: least

text: in

text: equipoise

text: regarding

text: a

text: nexus

text: between

text: the

text: Veteran

text: s

text: current

text: condition

text: and

text: his

text: injury

text: during

text: his

text: military

text: service

text: Therefore

text: in

text: affording

text: the

text: Veteran

text: the

text: benefit

text: of

text: the

text: doubt

text: the

text: Veteran

text: s

text: claim

text: of

text: service

text: connection

text: for

text: a

text: back

text: condition

text: must

text: be

text: granted

text: Service

text: Connection

text: Acquired

text: Psychiatric

text: Condition

text: PTSD

text: The

text: Veteran

text: claims

text: essentially

text: that

text: his

text: PTSD

text: or

text: any

text: acquired

text: psychiatric

text: condition

text: to

text: include

text: major

text: depressive

text: disorder

text: is

text: due

text: to

text: his

text: back

text: condition

text: which

text: has

text: been

text: service

text: connected

text: herein

text: The

text: Board

text: has

text: construed

text: the

text: claim

text: in

text: accordance

text: with

text: Clemons

text: v

text: Shinseki

text: Vet

text: App

text: observing

text: that

text: when

text: determining

text: the

text: scope

text: of

text: a

text: claim

text: the

text: Board

text: must

text: consider

text: the

text: claimant

text: s

text: description

text: of

text: the

text: claim

text: the

text: symptoms

text: the

text: claimant

text: describes

text: and

text: the

text: information

text: the

text: claimant

text: submits

text: or

text: that

text: the

text: Secretary

text: obtains

text: in

text: support

text: of

text: that

text: claim

text: The

text: Board

text: notes

text: that

text: competent

text: medical

text: evidence

text: of

text: record

text: which

text: includes

text: a

text: positive

text: nexus

text: opinion

text: from

text: a

text: private

text: psychiatrist

text: reveals

text: that

text: the

text: Veteran

text: s

text: psychiatric

text: conditions

text: are

text: in

text: fact

text: proximately

text: caused

text: aggravated

text: by

text: the

text: Veteran

text: s

text: now

text: service

text: connected

text: back

text: condition

text: Therefore

text: the

text: Veteran

text: s

text: claim

text: for

text: service

text: connection

text: must

text: be

text: granted

text: A

text: claim

text: for

text: secondary

text: service

text: connection

text: requires

text: medical

text: evidence

text: that

text: connects

text: the

text: asserted

text: secondary

text: disability

text: to

text: the

text: service

text: connected

text: disability

text: See

text: Velez

text: v

text: West

text: Vet

text: App

text: In

text: order

text: to

text: establish

text: entitlement

text: to

text: service

text: connection

text: on

text: this

text: secondary

text: basis

text: there

text: must

text: be

text: evidence

text: of

text: a

text: current

text: disability

text: evidence

text: of

text: a

text: service

text: connected

text: disability

text: and

text: medical

text: evidence

text: establishing

text: a

text: link

text: between

text: the

text: service

text: connected

text: disability

text: and

text: the

text: current

text: disability

text: See

text: Wallin

text: v

text: West

text: Vet

text: App

text: A

text: disability

text: which

text: is

text: proximately

text: due

text: to

text: or

text: the

text: result

text: of

text: a

text: service

text: connected

text: disease

text: or

text: injury

text: shall

text: be

text: service

text: connected

text: When

text: service

text: connection

text: is

text: thus

text: established

text: for

text: a

text: secondary

text: condition

text: the

text: secondary

text: condition

text: shall

text: be

text: considered

text: a

text: part

text: of

text: the

text: original

text: condition

text: C

text: F

text: R

text: a

text: Secondary

text: service

text: connection

text: may

text: also

text: be

text: established

text: for

text: a

text: nonservice

text: connected

text: disability

text: which

text: is

text: aggravated

text: by

text: a

text: service

text: connected

text: disability

text: In

text: such

text: an

text: instance

text: the

text: Veteran

text: may

text: be

text: compensated

text: for

text: the

text: degree

text: of

text: disability

text: over

text: and

text: above

text: the

text: degree

text: of

text: disability

text: existing

text: prior

text: to

text: the

text: aggravation

text: C

text: F

text: R

text: b

text: see

text: Allen

text: v

text: Brown

text: Vet

text: App

text: Here

text: the

text: Veteran

text: has

text: provided

text: a

text: February

text: private

text: psychiatric

text: evaluation

text: from

text: a

text: board

text: certified

text: psychologist

text: Dr

text: J

text: C

text: After

text: conducting

text: a

text: thorough

text: interview

text: of

text: the

text: Veteran

text: as

text: well

text: as

text: reviewing

text: his

text: claims

text: file

text: and

text: medical

text: history

text: the

text: examiner

text: noted

text: an

text: Axis

text: I

text: diagnosis

text: of

text: PTSD

text: as

text: well

text: as

text: an

text: Axis

text: II

text: diagnosis

text: of

text: major

text: depressive

text: disorder

text: with

text: history

text: of

text: traumatic

text: brain

text: trauma

text: While

text: the

text: examiner

text: noted

text: that

text: the

text: Veteran

text: suffered

text: psychologically

text: traumatic

text: events

text: when

text: he

text: was

text: a

text: child

text: and

text: was

text: abused

text: the

text: examiner

text: significantly

text: concluded

text: that

text: the

text: Veteran

text: s

text: depression

text: was

text: aggravated

text: by

text: his

text: back

text: condition

text: which

text: is

text: now

text: service

text: connected

text: To

text: this

text: end

text: the

text: examiner

text: explicitly

text: noted

text: that

text: the

text: Veteran

text: essentially

text: shuts

text: down

text: when

text: his

text: back

text: starts

text: hurting

text: and

text: just

text: does

text: not

text: want

text: to

text: leave

text: his

text: bed

text: The

text: examiner

text: concludes

text: that

text: this

text: not

text: only

text: affects

text: his

text: motivation

text: but

text: also

text: would

text: prevent

text: him

text: from

text: doing

text: any

text: work

text: Therefore

text: he

text: concludes

text: that

text: his

text: service

text: connected

text: back

text: condition

text: does

text: in

text: fact

text: aggravate

text: his

text: depression

text: The

text: Board

text: finds

text: this

text: medical

text: examination

text: to

text: be

text: highly

text: probative

text: and

text: dispositive

text: of

text: the

text: inquiry

text: at

text: hand

text: The

text: conclusion

text: is

text: accurately

text: provided

text: along

text: with

text: a

text: rationale

text: and

text: full

text: review

text: and

text: analysis

text: of

text: the

text: medical

text: and

text: psychiatric

text: history

text: of

text: the

text: Veteran

text: Indeed

text: the

text: examination

text: report

text: is

text: even

text: completed

text: on

text: a

text: VA

text: psychiatric

text: evaluation

text: form

text: VA

text: Form

text: P

text: and

text: it

text: is

text: the

text: only

text: medical

text: opinion

text: of

text: record

text: As

text: noted

text: above

text: secondary

text: service

text: connection

text: can

text: also

text: be

text: established

text: if

text: the

text: claimed

text: condition

text: was

text: aggravated

text: by

text: a

text: service

text: connected

text: condition

text: Here

text: the

text: only

text: medical

text: evidence

text: of

text: record

text: shows

text: that

text: the

text: Veteran

text: s

text: depression

text: and

text: other

text: undistinguishable

text: psychiatric

text: conditions

text: to

text: include

text: PTSD

text: was

text: has

text: been

text: aggravated

text: by

text: his

text: now

text: service

text: connect

text: back

text: condition

text: Therefore

text: the

text: Board

text: finds

text: that

text: service

text: connection

text: for

text: his

text: psychiatric

text: conditions

text: is

text: warranted

text: and

text: the

text: claim

text: must

text: be

text: granted

text: ORDER

text: Entitlement

text: to

text: service

text: connection

text: for

text: a

text: back

text: condition

text: is

text: granted

text: Entitlement

text: to

text: service

text: connection

text: for

text: an

text: acquired

text: psychiatric

text: condition

text: to

text: include

text: PTSD

text: and

text: major

text: depressive

text: disorder

text: as

text: secondary

text: to

text: service

text: connected

text: back

text: condition

text: is

text: granted

text: REMAND

text: The

text: Board

text: finds

text: that

text: additional

text: evidentiary

text: development

text: is

text: necessary

text: before

text: the

text: Board

text: can

text: adjudicate

text: the

text: Veteran

text: s

text: claim

text: for

text: a

text: TDIU

text: Although

text: the

text: Board

text: sincerely

text: regrets

text: the

text: additional

text: delay

text: it

text: is

text: necessary

text: to

text: ensure

text: that

text: there

text: is

text: a

text: complete

text: record

text: upon

text: which

text: to

text: decide

text: the

text: Veteran

text: s

text: claims

text: so

text: that

text: he

text: is

text: afforded

text: every

text: possible

text: consideration

text: As

text: the

text: level

text: of

text: rating

text: for

text: the

text: granted

text: claims

text: of

text: service

text: connection

text: decided

text: herein

text: is

text: relevant

text: to

text: the

text: Veteran

text: s

text: TDIU

text: request

text: as

text: they

text: are

text: the

text: only

text: service

text: connected

text: disabilities

text: awarded

text: to

text: the

text: Veteran

text: this

text: issue

text: must

text: be

text: considered

text: inextricably

text: intertwined

text: Therefore

text: the

text: Veteran

text: s

text: request

text: for

text: a

text: TDIU

text: must

text: be

text: remanded

text: as

text: they

text: are

text: intertwined

text: with

text: the

text: determinations

text: of

text: ratings

text: for

text: his

text: now

text: service

text: connected

text: conditions

text: See

text: Harris

text: v

text: Derwinski

text: Vet

text: App

text: noting

text: that

text: when

text: a

text: determination

text: on

text: one

text: issue

text: could

text: have

text: a

text: significant

text: impact

text: on

text: the

text: outcome

text: of

text: another

text: issue

text: such

text: issues

text: are

text: considered

text: inextricably

text: intertwined

text: and

text: VA

text: is

text: required

text: to

text: decide

text: those

text: issues

text: together

text: Accordingly

text: the

text: case

text: is

text: REMANDED

text: for

text: the

text: following

text: action

text: When

text: disability

text: ratings

text: and

text: effective

text: dates

text: have

text: been

text: determined

text: for

text: all

text: service

text: connected

text: disabilities

text: to

text: include

text: those

text: granted

text: herein

text: and

text: all

text: development

text: that

text: the

text: RO

text: deems

text: necessary

text: is

text: undertaken

text: the

text: Veteran

text: s

text: request

text: for

text: a

text: TDIU

text: should

text: be

text: readjudicated

text: If

text: any

text: benefit

text: sought

text: on

text: appeal

text: remains

text: denied

text: the

text: Veteran

text: and

text: his

text: representative

text: should

text: be

text: provided

text: with

text: a

text: supplemental

text: statement

text: of

text: the

text: case

text: SSOC

text: that

text: contains

text: notice

text: of

text: all

text: relevant

text: actions

text: taken

text: including

text: a

text: summary

text: of

text: the

text: evidence

text: and

text: applicable

text: law

text: and

text: regulations

text: considered

text: pertinent

text: to

text: the

text: issues

text: An

text: appropriate

text: period

text: of

text: time

text: should

text: be

text: allowed

text: for

text: response

text: by

text: the

text: Veteran

text: and

text: his

text: representative

text: Thereafter

text: the

text: case

text: should

text: be

text: returned

text: to

text: the

text: Board

text: for

text: further

text: appellate

text: consideration

text: if

text: in

text: order

text: The

text: appellant

text: has

text: the

text: right

text: to

text: submit

text: additional

text: evidence

text: and

text: argument

text: on

text: the

text: matter

text: or

text: matters

text: the

text: Board

text: has

text: remanded

text: Kutscherousky

text: v

text: West

text: Vet

text: App

text: This

text: claim

text: must

text: be

text: afforded

text: expeditious

text: treatment

text: The

text: law

text: requires

text: that

text: all

text: claims

text: that

text: are

text: remanded

text: by

text: the

text: Board

text: of

text: Veterans

text: Appeals

text: or

text: by

text: the

text: United

text: States

text: Court

text: of

text: Appeals

text: for

text: Veterans

text: Claims

text: for

text: additional

text: development

text: or

text: other

text: appropriate

text: action

text: must

text: be

text: handled

text: in

text: an

text: expeditious

text: manner

text: See

text: U

text: S

text: C

text: A

text: B

text: West

text: BRADLEY

text: W

text: HENNINGS

text: Veterans

text: Law

text: Judge

text: Board

text: of

text: Veterans

text: Appeals

text: Department

text: of

text: Veterans

text: Affairs