Citation Nr: 1234958 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 05-36 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a low back disability (originally claimed as residuals of a low back injury and degenerative changes of the lumbar spine). 2. Entitlement to service connection for a bilateral hip disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety/depression (other than post traumatic stress disorder (PTSD)), to include as secondary to a low back disorder. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at law ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. By that rating action, the RO, in part, confirmed and continued a denial of service connection for residuals of a low back injury; and denied service connection for degenerative changes of the lumbar spine, hip condition and anxiety/depression. The Veteran appealed this rating action to the Board. In a March 2008 decision, the Board reopened and remanded the Veteran's claim of entitlement to service connection for residuals of a low back injury. The Board also remanded his claim of entitlement to service connection for degenerative changes of the lumbar spine. The Board denied, in part, service connection for a hip disorder and anxiety/depression. The Veteran appealed the Board's denials of service connection for a hip disorder and anxiety/depression to the United States Court of Appeals for Veterans Claims (Court). He did not appeal the denials of service connection for a foot disorder, a leg disorder, or PTSD, which were denied by the Board in its March 2008 decision. In March 2010, the Court issued an order granting a March 2010 Joint Motion to Remand (JMR) the appeal to the Board. The appeal was returned to the Board for action consistent with the March 2010 JMR and Court order. Pursuant to the Court's Order, in August 2010, the Board remanded the Veteran's claims for service connection for a hip disorder and acquired psychiatric disorder to the RO for additional development. The requested development has been completed and the case has returned to the Board for appellate consideration. With regards to the claim for an acquired psychiatric disorder, to include anxiety and depression, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that when the Veteran specifically requests service connection for post traumatic stress disorder (PTSD), but the medical record includes other psychiatric diagnoses, the claim may not be narrowly construed as only a PTSD claim, and should be considered as a claim for a psychiatric disorder. Here, the evidence of record reflects that the Veteran has been diagnosed with PTSD. However, as the Board separately denied service connection for PTSD in its March 2008 decision, that decision is final and cannot be reopened unless new and material evidence has been received. 38 C.F.R. § 7105 (West 2002); 38 C.F.R. § 3.156 (2011). Consequently, the Board will not recharacterize the Veteran's claim for an acquired psychiatric disorder in accordance with Clemons and as noted on the title page. In addressing the issues on appeal in May 2012 Supplemental Statements of the Case, the RO indicated that it had reviewed VA treatment reports, dated through May 2012, to include those uploaded to the Veteran's Virtual VA file. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for PTSD, has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A disease or injury of the low back and hips was not noted at service entrance and the presumption of soundness has not been rebutted with respect to the Veteran's low back and hips. 2. A lumbar spine disability did not originate during a period of military service or until several years thereafter and is not otherwise etiologically related thereto but rather to post-service motor vehicle and employment-related incidents. 3. A bilateral hip disability did not have its onset during military service or until several years later and is not otherwise etiologically related thereto. 4. An acquired psychiatric disorder, variously diagnosed as generalized anxiety and mood disorders, did not have its onset during military service and is not otherwise etiologically related thereto. 5. There is no service-connected low back disability to which the Veteran's acquired psychiatric disorder may be attributed. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a disability of the low back are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 1153, 5103, 5103A, 5017 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2011). 2. The criteria for establishing entitlement to service connection for a bilateral hip disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 1153, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2011). 3. The criteria to establish service connection for an acquired psychiatric disability, to include as secondary to a low back disability, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307. 3.309, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Upon receiving a complete or substantially complete application, VA must notify the claimant of any information and evidence not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a). The RO provided the Veteran with pre-adjudication VCAA notice in a February 2004 letter. By that letter, the RO specifically notified him of the substance of the VCAA including the types of evidence necessary to establish his service connection claims, and the division of responsibility between the Veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) , the letter essentially satisfied the requirements of the VCAA by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA, however, may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Pre-adjudication notice as to the service connection claims on appeal was provided in the above-cited letter. The February 2004 letter informed the Veteran to let VA know of any evidence he thought would support his claims, that it was his responsibility to make sure that VA received all requested records not in the possession of a Federal entity, and told him where to send what "we need." In addition, the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the Dingess elements via the February 2004 letter and an April 2008 letter. Id. In Pelegrini II, the Court also held that VCAA notice should be given before an initial agency of original jurisdiction (AOJ) decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. The Veteran was provided pre-adjudication VCAA notice via a February 2004 letter. Id. The RO has also taken appropriate action to comply with the duty to assist the Veteran with the development of the claims on appeal. The Veteran's service treatment records (STRs), Social Security Administration (SSA) records, private and VA treatment and examination reports, and statements of the Veteran, his spouse, and attorney are of record. In March 2008 and August 2010 the Board remanded the claims on appeal to have VA examine the Veteran to determine the etiology of his low back and hip disabilities. VA examined the Veteran in June and July 2011. (See June and July 2011 VA mental (June 2011), orthopedic and spine examination reports. Copies of the VA examination reports have been associated with the claims files. The Board finds that the RO has substantially complied with its August 2010 remand directives for the issues decided herein. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Veteran has not identified any outstanding evidence, to include medical records, which could be obtained to substantiate the service connection claims discussed in the analysis below. VA has complied with the duty to assist requirements of the VCAA with respect to the service connection claims on appeal. In sum, any procedural errors in the development and consideration of the claims by the originating agency were non-prejudicial to the Veteran. Given these matters of record, the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Laws and Regulations The Veteran seeks service connection for a low back disability, hip disability and an acquired psychiatric disability (other than PTSD). (i) Service Connection-general criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). 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. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease, such as arthritis and psychosis, to a degree of 10 percent or more within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2011). For the showing of chronic disease during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." On the other hand, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). Under the laws administered by VA, 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; 38 C.F.R. § 3.304(b). (ii) Secondary Service Connection Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service- connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen. 38 C.F.R. 3.310 (2011). The amended 38 C.F.R. § 3.310, limits service connection on the basis of aggravation to those situations in which medical evidence created prior to the alleged aggravation establishes a baseline for the disability prior to aggravation. III. Analysis (i) Low back and bilateral hip disabilities The Vetearn seeks service connection for low back and bilateral hip disabilities. He maintains that his these disabilities are etiologically related to two events during military service: (i) having fallen off a tanker during service; and (ii) having fallen backward onto his back after he was hit in the face during a personal assault. The Veteran's service treatment records reflect that his spine and lower extremities were evaluated as "normal" upon examination for service enlistment in July 1972. On an accompanying July 1972 Report of Medical History, the Veteran indicated that he had had recurrent back pain and arthritis, rheumatism and bursitis. He denied having any bone, joint or other deformity. On the reverse side of the report, the Veteran reported that he had sustained, in part, back and hip injuries at age 12 as a result of a motor vehicle accident. In November 1972, the Veteran was seen in the orthopedic clinic with complaints of back pain. X-rays of the lumbar spine revealed no significant abnormality. No further objective findings referable to the low back were reported. In April 1973, the Veteran complained of pain in the right groin area and inside of the right thigh. He related that had been injured in a fight. There was no swelling in the area. A September 1974 service separation examination report reflects that the Veteran's spine and lower extremities were evaluated as "normal." The examiner assigned the Veteran a numerical designation of 1 under P on the Veteran's physical profile, i.e., PULHES (PULHES is the six categories into which a physical profile is divided. The P stands for physical capacity or stamina; the U for upper extremities; the L for lower extremities; the H for hearing and ear; the E for eyes; and the S for psychiatric). Then, as now, the number 1 indicated that an individual possessed a high level of medical fitness and, consequently, was medically fit at service discharge. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). On DA Form 3082, Statement of Medical Condition, dated and signed by the Vetearn in October 1974, the Veteran checked the box indicating that there had not been any change in his medical condition since his last separation examination. While the Veteran's STRs reflect that he reported having sustained back and hip injuries as a result of a pre-service motor vehicle accident, no condition involving the low back or hips was found on either the entrance or separation examination. Thus, the presumption of sounds applies at least to the Veteran's back and hips. In order to rebut the presumption of soundness, there must be clear and unmistakable evidence that a disease or disability existed prior to military service and was not aggravated therein. As noted above, the Veteran was seen for isolated incidents of back and right groin pain in November 1972 and April 1973, respectively. X-rays of the lumbar spine, performed in November 1972, were normal. A hip disability was not noted at the time the Veteran complained of pain in the right groin area in April 1973. The Veteran's spine and lower extremities were evaluated as normal at service discharge in September 1974. Overall, the Board finds the medical evidence insufficient to show, clearly and unmistakably, that a disease or injury of the low back and/or hips existed prior to the Veteran's entrance into military service in July 1972. 38 C.F.R. § 3.304(b). Accordingly, the presumption of soundness at service entrance has not been rebutted with respect to the Veteran's spine and hips. Thus, the Board will analyze the claims for service connection for low back and bilateral hip disabilities on a direct incurrent basis. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed.Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). With respect to whether there is medical evidence of current low back and bilateral hip disabilities, the Veteran has been diagnosed with degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine and DJD of the right and left hips. (See July 2011 VA orthopedic and spine examination reports). Thus, the crux of the Veteran's claims for service connection for low back and bilateral hip disabilities turns on whether there is evidence of a nexus between his currently diagnosed low back and bilateral hip disabilities and his period of military service. Evidence weighing against a medical nexus with respect to the claim for service connection for a low back disability includes a July 2011 VA examiner's opinion. The July 2011 VA examiner's opinion with respect to the etiology of the Veteran's low back was based on a thorough and exhaustive review of the STRs, and post-service VA and private medical records, SSA records, and physical evaluation of the Veteran's low back, to include X-rays. The VA examiner reported clinical findings in the Veteran's STRs that are relevant to the low back and are consistent with that previously reported herein. The examiner also noted post-service evidence showing that the Veteran had injured his low back in several post-service accidents that necessitated three (3) separate surgeries to the lumbar spine, which is also consistent with the post-service evidence of record. For example, as noted by the July 2011 VA examiner and as indicated in the post-service medical evidence, the Veteran did not have any low back complaints from service discharge in 1974 to 1982, when he sustained an acute disc injury with herniation after he helped carry a rug and then fell on the ice two weeks later. The Veteran also reinjured his lumbar spine in three (3) post-service employment-related injuries in 1986, 1991 and 1993 that resulted in three (3) low back surgeries. After noting the above-cited service and post-service history with respect to the Veteran's lumbar spine, the July 2011 VA examiner opined that it was less likely as not that the Veteran's present lumbar condition was the result of the alleged tanker incident or the original 1965 motor vehicle accident because lumbar spine films were normal in 1972 and at his first post-service injury in 1982, when he had an acute disc injury with herniation. The July 2011 VA examiner indicated that the consequences of the 1982 low back injury had set in motion the premature DJD and DDD of the Veteran's lumbar spine that was then further aggravated by other events post service in 1986 and 1991. The July 2011 VA examiner's opinion is consistent with the above-cited STRs, which show that the Veteran was seen for an isolated complaint of back pain that resolved without any chronic low back disability being diagnosed in November 1972. At that time, X-rays of the Veteran's lumbar spine were normal. The remainder of the Veteran's STRs are absent for any further clinical findings referable to the low back. His spine was evaluated as "normal" at service discharge in September 1974. The examiner at service separation assigned the Veteran a numerical designation of 1 under P on the PULHES scale. On an October 1974 Statement of Medical Condition, the Veteran stated that there had not been any change in his medical condition. The July 2011 VA examiner's opinion is also consistent with post-service VA and private treatment records, reflecting that the Veteran had initially sought treatment for back pain in March 1982, after he helped carry a rug and then fell two (2) weeks later on the ice, as well as several post-service employment injuries to the lumbar spine in 1986, 1991 and 1993 that resulted in three (3) surgeries. (See March 1982 VA hospitalization report); March 1987 report, prepared by Columbia Orthopedic Group; August 1993 report, prepared by Jefferson City Bone and Joint Clinic; and, March 2004 VA treatment report). Th July 2011 VA examiner's opinion is against the claim for service connection for a low back disability and is uncontroverted. Evidence weighing against a medical nexus with respect to the claim for service connection for bilateral hip disability includes a July 2011 VA examiner's opinion. The July 2011 VA examiner's opinion with respect to the etiology of the Veteran's hips was based on a thorough and exhaustive review of the Veteran's service treatment records, post-service VA and private medical records, SSA records, and physical evaluation of the Veteran's hips, to include X-rays. After reporting clinical findings in the Veteran's STRs relevant to the hips that are consistent with those previously reported herein, the VA examiner opined that the arthritic changes of the Veteran's peripheral skeleton (hips, right shoulder, knees, and hands) that had appeared over the last few years were consistent with DJD seem commonly found in the population of the Veteran's age and did not beg the question of another etiology other than age associated DJD. Thus, the July 2011 VA examiner concluded that it was less likely as not that the Veteran's current bilateral hip condition was either caused by or permanently aggravated by his period of military service. The July 2011 VA examiner reasoned that while the Veteran's STRs showed that he had been evaluated for right groin and thigh pain, an examination of the area was negative for swelling even bruising of the area. In fact, during the July 2011 VA examination, the Veteran himself stated that he had recovered from that incident. The VA examiner further indicated that there were no further complaints referable to the hips for the remainder of the Veteran's military service, to include at service separation in 1974. The VA examiner noted that from an initial post-service reference to the right buttock pain in 1982 after the Veteran fell on the ice to 1994, private and VA examiners had attributed his buttocks symptoms to that of a lumbar origin, not a primary problem with the hip joints. This conclusion is consistent with the other medical evidence of record. Specifically, a March 1982 VA hospitalization report, reflecting that the Veteran had complained of right hip and gluteal pain after he slipped and fell on the ice. X-rays of the lumbosacral region were normal. (See March 1982 VA hospitalization report, as well as August and September 1993 reports, prepared by Jefferson City Bone and Joint Clinic, reflecting that the Veteran had pain in his buttocks that was associated with low back surgery and left hip pain that radiated up the Veteran's back and into the back of his neck.) The VA July 2011 VA examiner's opinions with respect to the Veteran's low back and bilateral hip disabilities are against the claims and are uncontroverted. They are also clearly based upon a comprehensive and factually accurate review of the record evidence from all sources and are therefore highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); see also Gardin v. Shinseki, 613 F.3d 1374 Fed. Cir. July 2010) (affirming the holding in Nieves-Rodriguez, Id.) For these reasons the Board finds the July 2011 VA examiner's opinions to be the most probative opinion of record with regards to the question of medical nexus of the Veteran's low back and bilateral hip disabilities. In addition, as there is no evidence of any arthritis of the low back or hips manifested to a compensable degree within a year of the Veteran's discharge from active military service in September 1974, service connection is also not warranted for either disability on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. As discussed above, service connection may also be established by a continuity of symptomatology between a current disorder and service. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303. Lay evidence of symptomatology is pertinent to a claim for service connection, if corroborated by medical evidence. Rhodes v. Brown, 4 Vet. App. 124, 126- 27 (1993). A lay person is competent to testify in regard to the onset and continuity of symptomatology. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In various statements submitted throughout the appeal, the Veteran has indicated that his low back and bilateral hip symptoms had their onset during military service and that they have continued since service discharge in 1974. The Board observes that the earliest evidence of any low back and left hip complaints post-service is contained in March 1982, which is over seven (7) years after his discharge from active duty service. After 1982, the Veteran sought treatment for his low back and hips after he was involved in several post-service employment related incidents. In fact, the Veteran did not report the alleged in-service tanker-truck incident until he was evaluated by VA in September 1994. (See September 1994 General Medical examination report). Thus, continuity of symptomatology is not demonstrated, and the contemporaneous lay and medical evidence may not be reasonably construed to find that the Veteran had continuing symptoms during active duty service which could be causally related to his current low back and bilateral hip disabilities. In contrast, the fact that the Veteran did not then report any low back and hip symptoms strongly suggests that they were not present at that time and is highly probative evidence against the claims, as it tends to show no continuity of symptoms of low back and/or bilateral hip disabilities since active duty service. In other words, the Veteran's belated statements describing complaints of low back and bilateral hip pain since active duty service do not approach the probative weight and credibility of the lay and medical evidence contained in the service department records contemporaneous to that time. Thus, the Board finds that service connection for low back and bilateral hip disabilities is not warranted. Although the Veteran has current low back and bilateral hip disabilities and service treatment records show that he sought treatment for low back and right groin pain in service, the evidence of record fails to demonstrate that they are related to his military service. In support of the Veteran's claims, he and his attorney have made lay assertions that the his lumbar spine and bilateral hip disabiities are etiologically related to two events during military service: (i) having fallen off a tanker during service; and (ii) falling backward onto his back after he was hit in the face during a personal assault. The Board acknowledges that the Veteran is competent to testify as to his observations, Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 131, 1316 (Fed. Cir. 2009). (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). In this case, however, the question of whether the Veteran's DJD and DDD of the lumbar spine and DJD of the hips are due to service-related incident is an etiological question unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The record does not show, nor does the Veteran contend, that he or his attorney have specialized education, training, or experience that would qualify either one of them to provide an opinion on this matter. Accordingly, the Veteran's and his attorney's lay statements are entitled to limited or no probative value in this regard. See Bostain v. West, 11 Vet. App. 124, 127 (1998); See also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims for service connection for low back and bilateral hip disabilities. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) . (ii) Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder (other than PTSD). He claims that he has an acquired psychiatric disorder (other than PTSD) variously diagnosed as generalized anxiety disorder, mood disorder and depression that is the result of having witnessed 186 soldiers die after they were hit by live ammunition, run over by tanks and were victims of a helicopter crash during a training exercise at Fort Hood, Texas. The Veteran's STRs reflects that the Veteran was found to have been psychiatrically "normal" at service entrance in July 1972. On an accompanying Report of Medical History, the Veteran indicated that he had had nervous trouble, loss of memory or amnesia, and period of unconsciousness. He denied having had depression or excessive worry. He reported that he did not know if he had had frequent trouble sleeping. His STRs are wholly devoid of any psychiatric complaints or pathology. A September 1974 service separation examination report reflects that the Veteran was found to have been psychiatrically "normal." The examiner assigned the Veteran a numerical designation of 1 under P on the Veteran's physical profile, i.e., PULHES (PULHES is the six categories into which a physical profile is divided. The P stands for physical capacity or stamina; the U for upper extremities; the L for lower extremities; the H for hearing and ear; the E for eyes; and the S for psychiatric). Then, as now, the number 1 indicated that an individual possessed a high level of medical fitness and, consequently, was medically fit at service discharge. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). On DA Form 3082, Statement of Medical Condition, dated and signed by the Vetearn in October 1974, the Veteran checked the box indicating that there had not been any change in his medical condition since his last separation examination. While these service treatment records show that the Veteran reporting having had nervous trouble and loss of memory prior to service entrance, a psychiatric condition was not found on either the entrance or separation examination. Neither the service treatment record nor his entrance examination report contains medical evidence sufficient to show, clearly and unmistakably, that he had a psychiatric disease prior to service entrance. 38 C.F.R. § 3.304(b). Accordingly, the presumption of soundness at service entrance has not been rebutted with respect to the Veteran's psychiatric status. Thus, the Board will analyze the claims for service connection an acquired psychiatric disorder (other than PTSD) on a direct incurrent basis. With respect to whether there is medical evidence of a current acquired psychiatric disorder, the Veteran has been diagnosed with generalized anxiety disorder, mood disorder associated with low back pain and depression and anxiety associated with low back pain. (See October 2009 VA treatment report and June 2011 VA mental examination report, respectively). Thus, this case turns on whether there is evidence of a nexus between an acquired psychiatric disability (other than PTSD) and the Veteran's period of military service. In this case, no examiner, private or VA, has attributed the Veteran's acquired psychiatric disorder (other than PTSD) to an incident of military service. In contrast, and as noted above, the Veteran has been diagnosed as having a mood disorder and depression and anxiety, each disorder being associated with low back pain. Id. Inasmuch as the Board has already denied service connection for a low back disability in the preceding analysis, service connection for this disability has not been established. Thus, a threshold legal requirement for establishing secondary service connection for an acquired psychiatric disorder (other than PTSD) on a secondary basis is not met. Accordingly, the claim of service connection for an acquired psychiatric disorder, claimed as secondary to a low back disability must be denied because it lacks legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, the preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder on direct and secondary bases and it is denied. In addition, as there is no evidence of any psychosis manifested to a compensable degree within a year of the Veteran's discharge from active military service in September 1974, service connection is also not warranted for an acquired psychiatric disorder (other than PTSD) on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. In reaching the foregoing, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim for service connection for an acquired psychiatric disorder (other than PTSD) to include as secondary to a low back disability, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a low back disability (originally claimed as residuals of a low back injury and degenerative changes of the lumbar spine) is denied. Service connection for a bilateral hip disability, to include as secondary to a low back disability is denied. Entitlement to service connection for an acquired psychiatric disorder (other than PTSD) is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs