Citation Nr: 1314567 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 08-24 285 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to a low back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from December 1982 to December 1985. This appeal initially came to the Board of Veterans' Appeals (Board) from an August 2007 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in February 2011. A transcript of that hearing is of record. The Board reopened and denied the Veteran's claim for service connection for a low back disorder in a November 2011 decision and remanded the claim for service connection for depression. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In a December 2011 Order, the Court granted a joint motion of the parties (JMR) vacating the Board decision as to the issue of service connection for a low back disorder and remanding the claim to the Board. The Court did not disturb the Board's finding that new and material evidence had been submitted to reopen the Veteran's claim for service connection for a low back disorder. In November 2012, the Board remanded the Veteran's claim for service connection for a low back disorder for development consistent with the JMR. In February 2013, the Board remanded the claim again to assure that the Agency of Original Jurisdiction (AOJ) fully considered the evidence of record. As will be discussed, the directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). It is noted that the Board has previously recharacterized the Veteran's claim for depression as one for service connection for an acquired psychiatric disorder, to include depression. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has reviewed the Veteran's physical claims file, as well as the Veteran's file on the "Virtual VA" system, to ensure complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran's current low back disorder is not the result of any incident occurring during his military service. 2. The weight of the evidence is against a finding that the Veteran's acquired psychiatric disability either began during or was otherwise caused by his military service, or was secondary to or aggravated by a service connected disability. CONCLUSIONS OF LAW 1. Criteria for service connection for a back disability have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. 38 C.F.R. § 3.310(a) . Secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). Back The Veteran is seeking service connection for a back disability, which he believes is secondary to his military service. Specifically, the Veteran believes that his numerous parachute jumps in service led to his current disability, and he has frequently pointed to a single bad jump in June 1983 in which he allegedly fractured his foot as the time he also injured his back. The Veteran served on active duty from December 1982 to December 1985; and his DD-214 confirms that he received a parachute badge. As such, it is accepted that the Veteran did in fact complete numerous parachute jumps during service. However, the evidence is less clear that the Veteran actually experienced a back injury as he described. For example, no mention of any such injury was mentioned in the Veteran's service treatment records. At his Board hearing in 2011, the Veteran denied receiving any formal treatment following the alleged incident, stating only that his foot was wrapped. The Veteran also stated that he was given light duty for approximately two weeks thereafter, yet no documentation of a physical profile being assigned is of record. He also testified that he did not find out about his foot having been fractured until his separation physical. The Veteran has submitted a number of statements to support his contention that he injured his back during a high wind jump in June 1983. For example, in his November 2006 claim for service connection, the Veteran explained that he had served as a paratrooper at Ft. Bragg, and recalled a special jump in June 1983, during which he had landed with such impact that he broke his foot and injured his shoulder. He wrote another statement in January 2007 adding that he had injured his back in this jump as well. The Veteran has also repeated this account to a number of medical professionals throughout the course of his back appeals. In September 2007, identical letters were signed by two individuals who claimed to have witnessed the Veteran's injury around June 1983. The letters were preprinted and indicated that the Veteran had complained about back and feet injuries and was put on light duty for two weeks. The Veteran stated that seeking treatment was discouraged at that time. In December 2007, a letter was received from the reported jump master from the jump in which the Veteran asserts he was injured. The retired soldier confirmed that the Veteran was injured in the jump. The Veteran's ex-wife wrote that she recalled the Veteran complaining about his lower back, feet, knees, and neck after a jump in June and stayed on light duty for approximately a month; and his current wife wrote that the Veteran had complained of that jump for a number of years. The Veteran also testified at a RO hearing in July 2009 that he made more than 30 jumps during his military service. He stated that he broke his foot on one jump, but indicated that he did not know it was broken at that time. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the number of statements received, the Board does not doubt that the alleged high wind jump occurred. However, it does not appear that any injuries the Veteran may have incurred were of the severity he has alleged. First, service treatment records do not describe any treatment for a parachuting accident or injury. This is not surprising in that the Veteran has denied seeking any treatment for any parachuting related injuries. However, the Veteran has also reported that he broke his foot in this parachuting incident, but that he was not informed of the healed fracture until his separation physical (that occurred approximately 2.5 years after the alleged accident). For example, at his RO hearing, the Veteran was asked when he found out that his foot had been fractured to which he replied that on his exit out of the military the doctor noted that there were some broken bones in his foot. Yet, a review of the examination report from the Veteran's separation physical in October 1985, shows that his upper extremities and his spine were found to be normal; and no foot fracture, healed or otherwise, was noted. Moreover, no healed foot fracture was shown on x-rays taken a month after the Veteran separated from service. Shortly before separating from service, the Veteran filed a claim for service connection for a foot and skin problem, notably omitting any complaint of any back problem. This is notable in that it supports the conclusion that the Veteran was not experiencing significant back symptomatology at that time. In conjunction with that claim, the Veteran was provided with a VA examination in January 1986. At the examination, the Veteran reported having developed back pain after multiple parachute jumps. He stated that his back hurt with lifting, stooping, or bending. However, the pain was noted to come and go. On physical examination, the Veteran's back tested normally; the Veteran demonstrated full range of motion in the dorsolumbar spine in all planes without significant pain, there was no paravertebral atrophy or spasm noted, straight leg raises were negative, and deep tendon reflexes were normal. Moreover, x-rays showed a normal lumbar spine. The Veteran was diagnosed with a lumbosacral strain. Following the Veteran's separation physical and VA examination, the claims file is void of any back treatment for a number of years. At his RO hearing, the Veteran also asserted that his back had bothered him during the military but he denied knowing there was an actual disability until an MRI in 1986 which reportedly revealed a "crushed vertebrae." However, as noted, the radiologic imaging of the Veteran's back was interpreted as normal in 1986 and there is no mention of any "crushed vertebrae". At his Board hearing, the Veteran stated that he was treated by private chiropractors beginning about six months after his separation from service; but he had been unable to obtain records from either practitioner, as they were no longer in business. The Veteran was asked what the doctors treated him for, to which he responded: Those doctors worked on my, my foot, my injury, massaging my foot, loosening it up, um, gave me some um, arch support for my foot and some special shoes, type of shoes that I need to, to wear to help me uh, help me walk uh, then my neck and my ba-- my neck and back he didn't, didn't treat me [unintelligible] treat me for my lower pi-- back, my back and my, and my neck. And every now and then they gave me uh, neck support due to the fact that my neck feels, I'm having muscle spasms, neck feel a lot weak that day, I need to wear my neck support uh, brace, you know, with my back and my back support brace on the given time that my back is not, it feels weak. As such, it appears that this treatment was for the Veteran's foot and not necessarily his back. The Veteran indicated that he first sought treatment by VA for his back condition in 2006. Of note, not only was no back treatment received for a number of years after service, but the Veteran worked physically demanding jobs during that time, including working as a truck driver and car washer (as noted at his RO hearing). Additionally, he underwent a physical examination in June 2000 in an effort to join the National Guard at which his spine was found to be normal. As part of the examination, the Veteran denied having been treated in the previous five years for anything more than a minor illness, and he specifically denied any recurrent back pain on a medical history survey completed at that time. While the Veteran would now have the Board believe that he experienced back problems for a number of years after service, he specifically denied such in his medical survey. Only two possibilities exist here. Either the Veteran had been experiencing back pain, but dissembled in an effort to be accepted into the National Guard, which calls his credibility into question, or he did not have back pain at that time, which severs any continuity from service. Moreover, the Board noted that the Veteran was fired from a job in 2008 for dishonesty, also calling his credibility into question. At his Board hearing, the Veteran indicated that he had begun receiving treatment for his back at VA in 2006, that is approximately 20 years after he separated from service, and, as noted, the limited medical evidence regarding the Veteran's back during that 20 year period found his back to be normal. As such, the lack of treatment for any back problems during this time works against the Veteran's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). Moreover, as a lay person, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a chronic back disability. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, he is not considered competent to link his current back disability to his military service. Nevertheless, given the fact that the Veteran did serve as a paratrooper, which undoubtedly involves some hard landings, the Veteran has been provided with a number of VA examinations to investigate the etiology of his currently diagnosed back disability. The Veteran has also submitted several statements from private and VA doctors. This medical evidence will be discussed below. A private chiropractor wrote in February 2007 that he first saw the Veteran in December 2006 for treatment of complaints that "began insidiously about 10-15 years ago. He had attributed these symptoms to being a paratrooper in the Army 20 years ago." The chiropractor diagnosed lumbar disc degeneration, facet syndrome, thoracic sprain/strain, lumbar sprain/strain, thoracic subluxation, and lumbar subluxation. However, the chiropractor did not provide a medical opinion regarding the etiology of the Veteran's back disability; and thus, his statement appears to be little more than a bare transcription of the Veteran's reported lay history. Thus, the fact that the chiropractor wrote down what the Veteran told him is not transformed into competent medical evidence merely because the transcriber is a health care professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). This is particularly true since the chiropractor gave no indication that he had access to the Veteran's medical treatment records, which as noted showed a denial of back pain in 2000. In July 2007, the Veteran underwent a VA examination. The examiner recorded a detailed history of the Veteran's reported back injuries during service, specifically noting his allegations of back symptoms following the parachuting incident in 1983. The Veteran stated that he continued to have throbbing lower back pain which was usually present. The Veteran also reported weakness in his back, but was unable to explain what he meant. The Veteran had a back brace, but was not wearing it at the time of the examination. The examiner diagnosed degenerative joint disease of the lumbar spine and chronic back strain. The examiner indicated that he could not state without speculation whether the Veteran's low back pain and degenerative changes resulted from the injury in service; adding that the Veteran "certainly has an understandable source of strain in his present occupation of car washing." Given the examiner's conclusion that he could not address the etiology without speculation, this opinion is of limited probative value, but it does have some relevance in that it explained that working as a car washer could strain the back. In April 2009, the Veteran underwent another VA examination. Again the examiner reviewed the claims file and examined the Veteran. The Veteran reported that he had experienced neck pain since around 2006 and that he wore a back brace during back flare-ups; and he asserted that his injuries were related to airborne jump injuries. However, the examiner noted that none of the injuries were so severe that the Veteran was hospitalized or had prolonged incapacitation. The examiner also noted that the Veteran had reported experiencing increasing pain around 2006 but had been working up to that time. The examiner found that it was unlikely that the Veteran would spend 15 years without significant complaints then started having pain in 2006 that could be related to his military service in 1985; and opined that it was less likely than not that the Veteran's present back pain was related to his military service and to the airborne activity that he had. In August 2009, the Veteran's doctor at VA wrote that the Veteran provided a history of completing more than 30 jumps as a paratrooper in service. He asserted that the Veteran's chronic back pain could possibly be attributed to his service as a paratrooper. However, no rationale was provided for this opinion. Moreover, "could possibly be" in the context of a medical opinion is the same as "could possibly not be" and therefore cannot provide the requisite nexus in this case. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). A private physician in October 2009 noted that the Veteran had a history of chronic low back pain since 1982 and that he had been followed by VA for a long time. The examiner diagnosed severe degenerative disc disease at L4-5 and L5-S1, with chronic low back pain and right leg pain and give-way weakness, and multi-level moderate cervical spondylosis, with right-sided neck pain and give-way right arm weakness. The examiner did not comment further on the etiology of the disorders. It is noted that even the Veteran has not asserted that his back problems began in 1982, as he links them to the 1983 accident. The Veteran was afforded another VA compensation examination in April 2010. After reviewing the claims file and examining the Veteran, the examiner noted that he had been asked to consider whether the Veteran's current back disability was the result of either jumping out of airplanes or walking or jumping with heavy backpacks. The examiner noted that the Veteran's separation physical in 1985 found his back to be normal. The examiner acknowledged that activities such as parachuting could cause back problems, but he felt that given the lack of any objective evidence of back pain during the Veteran's time in service, it was less likely than not that the Veteran's current back pain is a continuation of the back pain during service. Following the Veteran's Board hearing in February 2011, the Board denied the Veteran's back claim in a November 2011 hearing. However, the decision was vacated and returned for additional consideration. Specifically, the JMR noted that while the Board had concluded that the evidence reasonably demonstrated that the Veteran had sustained a back injury in service, it also found that the April 2010 VA examination relied upon by the Board in denying the claim found no nexus given the absence of objective evidence of a back disorder in service. However, the parties observed that the April 2010 medical opinion actually indicated that although parachute jumping walking and jumping with a backpack can cause back pain, since there was no objective evidence of back pain during service, it was less likely than not that the current back pain was a continuation of the back pain in service. The parties agreed that the disparity between the Board's recitation and the actual report resulted in inadequate reasons and bases. In response to the JMR, the Board obtained an additional VA examination as to the etiology of the Veteran's back disability. In December 2012, the examiner reviewed the claims file and examined the Veteran. The Veteran conveyed his belief that he had injured his back in service during parachute jumps and through carrying rucksacks. The examiner noted that while the Veteran reported an in-service back injury, the separation physical in October 1985 found no back abnormality, and while a VA examination in 1986 noted a lumbar strain, it did not show a chronic lower back disability. As such, the examiner concluded that it was less likely than not that the Veteran's current lower back disability was a continuation of the low back pain from the military as there was no demonstrated evidence of chronicity since service. This most recent VA examination addressed the concerns that were voiced in the JMR. It considered the relevant factors, namely that the Veteran had injured his back in service, but that no chronic lumbar spine disability was shown at either separation or at the VA examination shortly thereafter, and that x-rays had been normal in 1986. Moreover, after reviewing the claims file and examining the Veteran, the examiner concluded that it was less likely than not that a current back disability either began during or was otherwise caused by the Veteran's military service. The examiner had a full understanding of the Veteran's contentions, of the medical evidence of record, and of the questions that were asked of him; and his opinion was supported by a complete rationale. As such, this opinion is found to be highly probative and entitled to great weight. It is also noted that this opinion was obtained to specifically address the concerns of the JMR; the examiner directly addressed those concerns; and no medical opinion has been put forth to question his findings. As discussed above, some of the evidence that is of record does suggest the possibility that the Veteran's current back disability is the result of his military service, but as discussed, this evidence is too equivocal to support a grant of service connection. Moreover, it is outweighed by the multiple opinions which have concluded that the weight of the evidence is against a finding that the Veteran's back disability either began during or was otherwise caused by his military service. In the absence of evidence showing that the Veteran developed a chronic low back disorder during service or that his current low back disorder is related to his military service, the preponderance of the evidence is against his claim, and the claim is therefore denied. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303. Acquired psychiatric disability In March 2007, the Veteran reported that he had been receiving treatment for depression. A depression screen was positive in January 2007, and the Veteran has participated in a number of group therapy sessions since that time in an effort to cope with and treat his depression. Service treatment records are silent for any psychiatric complaints, and the Veteran was found to be psychiatrically normal at his separation physical. Moreover, following service, there is no record of any psychiatric treatment for a number of years; and the Veteran was found to be psychiatrically normal at his enlistment physical for the National Guard in 2000. However, the Veteran has not argued that his diagnosed depression began during his time in military service, but rather he believes that it is secondary to his physical condition. For example, at his Board hearing, the Veteran testified that his depression was due to his difficulty in communicating due to his hearing loss and tinnitus. He underwent a VA examination in April 2009 after which the examiner stated that the Veteran's depressive disorder was aggravated by his physical conditions, including his back, shoulders, and neck, which generate discomfort and interfere with sleep and have made employment more difficult. However, service connection has not been established for any orthopedic disorder, and his claim for service connection for a back disability is once again denied by the Board in this decision. Thus, to the extent that the examiner related the Veteran's depression to an orthopedic disorder, it is irrelevant to the issue of service connection for depression. Nevertheless, because service connection had been established for left ear hearing loss and tinnitus, the Board remanded the Veteran's claim to obtain medical clarification as to whether either of these disabilities caused or aggravated his depression. In January 2012, the Veteran underwent a VA psychiatric examination. The examiner diagnosed the Veteran with depressive disorder. It is noted that the Veteran informed the examiner that he had been depressed after getting injured jumping out of a plane in approximately 1982 and he had felt bad that he had been unable to help prevent some of his friends from getting injured. The Veteran also asserted that this injury ended his military career (although it is noted that the Veteran actually served several more years (the bulk of his enlistment term) after that incident). The examiner reviewed the Veteran's claims file, and noted the Veteran's assertion that his hearing loss and tinnitus had caused his depression. However, following the examination, the examiner opined that the Veteran's depression was not caused by or permanently aggravated by his service connected hearing loss in his left ear or tinnitus. The examiner explained that during the interview, the Veteran linked his depression to his back pain, and the limitations of activity on account of this pain, which it was noted was similar to the Veteran's allegations at his earlier VA examination. The examiner found no evidence that the Veteran's tinnitus or hearing loss had caused his depression. As described, the evidence of record does not show that the Veteran's psychiatric disability began during service. To the extent that the Veteran believes that his depression is secondary to his service connected disabilities (tinnitus and hearing loss in his left ear), he lacks the medical training and expertise to make such a connection. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Nevertheless, two VA examinations were provided in an effort to determine the etiology of the Veteran's psychiatric disability. Unfortunately, neither examiner found it to be at least as likely as not that the Veteran's psychiatric disability began during service, or was secondary to or aggravated by a service connected disability. As such, the criteria for service connection have not been met, and the Veteran's claim is denied. The Board notes that in April 2013, the Veteran's representative argued that the Veteran's depression was secondary to his pes planus. However, service connection has previously been denied for pes planus, and there is no medical suggestion of such a link. As such, the representative's assertion does not warrant a grant of service connection. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letters dated in December 2006 and March 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letters also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records have been obtained, and private and VA treatment records, to the extent available, have also been obtained. As noted, the Veteran reported receiving private treatment in the six months after service, but he specifically denied that any records were available from that treatment, and therefore no remand for records is necessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Additionally, the Veteran testified at hearings before both the RO and the Board. The Veteran was also provided with a number of VA examinations (the reports of which have been associated with the claims file). The Board finds the most recent VA back examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Likewise, the Veteran's psychiatric examination in January 2012 was fully adequate, and there has been no argument to the contrary. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a back disability is denied. Service connection for an acquired psychiatric disability, to include depression, is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs