Citation Nr: 1319013 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 08-33 415 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as post traumatic stress disorder (PTSD), including secondary to a low back disability. 3. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from January 1951 to March 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision by the RO which denied the benefits sought on appeal. A hearing at the RO before an Acting member of the Board was held in June 2011. The Board remanded the appeal for additional development in September 2011. In October 2012, after being advised that the Acting Judge who conducted the June 2011 Travel Board hearing was no longer employed by VA, the Veteran requested another Travel Board hearing. A hearing at the RO before the undersigned was conducted in April 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There is no competent and credible evidence that shows that the Veteran's in-service fall and hospitalization for a back injury is etiologically related to the Veteran's currently diagnosed low back disorder. 2. There is no competent and credible evidence that shows that the Veteran has an acquired psychiatric disorder, including PTSD, as a result of military service, or service-connected disability. 3. The Veteran does not have a service-connected disability, and therefore, does not meet the minimum criteria for entitlement to TDIU. CONCLUSIONS OF LAW 1. The Veteran does not have a low back disability due to disease or injury which was incurred in or aggravated by service, nor may any current arthritis of the back be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1154(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The Veteran does not have an acquired psychiatric disorder, including PTSD, due to disease or injury which was incurred in or aggravated by service, nor is any current psychiatric disorder due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1154(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 3. The criteria for TDIU due to a service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.3, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5106, 5107, 5126; 38 C.F.R. §§ 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in September and October 2007, and January 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). As to VA's duty to assist, when service treatment records (STRs) are lost or missing, VA has a heightened obligation to satisfy the duty to assist. In such cases, the United States Court of Appeals for Veterans Claims (Court) has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this case, the RO was notified by the National Personnel Records Center (NPRC) in May 2007, that the Veteran's STRs were destroyed by fire in 1973 and were unavailable, and that there were no data entry cards on file in the Surgeon General Office (SGO). In January 2011, the NPRC advised the RO that a search of unit morning reports based on the information provided, could not be undertaken without the complete name of the Veteran's unit. In November 2011, the NPRC advised the RO that the Veteran's service personnel records were destroyed by fire and could not be reconstructed. In November 2007, and January and November 2011, the RO made formal findings that the Veteran's STRs and service personnel records had been destroyed and were unavailable, and notified the Veteran of the same in September 2007, January 2011, and November 2011. Considering the aforementioned, the Board concludes that the VA's actions constitute a "reasonably exhaustive search" of all available options and that any further development would not yield any probative evidence favorable to the Veteran. See Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). Accordingly, there is no basis for any further pursuit of the STRs and service personnel records. The Board finds that, to the extent possible, 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). The Veteran was examined by VA during the pendency of this appeal and testified at a hearing before the undersigned at the RO in April 2013. The Board finds that the VA examinations were comprehensive in scope and adequate upon which to base a decision on the merits of the issues on appeal. The reports included a detailed description of the Veteran's medical history, a discussion and analysis of the clinical findings, and provided a rational explanation for the conclusions reached. As noted above, the Veteran testified a hearing before the undersigned in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the hearing, the acting VLJ fully identified the issues on appeal, indicated the evidence necessary to substantiate the claims, and asked specific questions directed at identifying the location of any potentially outstanding medical evidence. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. Finally, the case has been subject to prior Board remands. The RO has associated all available treatment records with the claims folder and obtained adequate medical opinions. As such, the Board finds that the agency of AMC has substantially complied with the September 2011 and November 2012 remand orders and that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) 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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection also may be granted for a disability that is proximately due to or the result of a service-connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a) (2012). Also, when aggravation of a disease or injury for which service connection has not been granted is proximately due to, or the result of, a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Low Back Disability The Veteran contends that he injured his back after falling from a telephone pole while working as a wireman in a signal company at Ft Hood, Texas sometime in the winter of 1951/52. The Veteran testified that he fell a total of three times during service, and that on one occasion, he injured his lower back and was hospitalized for two weeks at Ft Hood. The Veteran asserted that he has had chronic low back problems ever since his back injury, and believes that his current psychiatric problems are related to the fall and his chronic back pain. The Veteran's wife testified in June 2011, that she first met the Veteran in 1956, after his discharge from service, and that he told her about his back injury and treatment in service sometime during their first year of marriage in 1957. She also testified that the Veteran had chronic back problems and nightmares ever since they were married. Concerning the Veteran and his wife's testimony, while they are competent to provide evidence regarding their observations and experiences, any such assertions must be weighed against other inconsistent or contradictory evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, unfortunately the Board cannot find the Veteran and his wife to be reliable historians on account of inconsistent statements and statements that do not appear to be plausible. For example, the Veteran contends that he has had chronic back problems ever since an injury in service. At the hearing in June 2011, the Veteran testified that other than the two weeks that he was hospitalized in late 1951 or early 1952, he never sought medical attention for any further back problems during service or until about "10-12 years ago." (See T p.12-13). The Veteran said that in the "sixties and seventies" his back was so bad that he could hardly move and that he needed help just to get off the couch. Yet, when asked why he never sought medical attention before that, he replied that he "didn't think about it" and that he "didn't know the condition of [his] back until later on." He said that he did not have anything to attribute his symptoms to until he finally went to the doctor and was told that he had ruptured and bulging discs. (T p.13-14). Unfortunately, the Board cannot deem as plausible that the Veteran would have chronic back problems that were so severe at times, that he had difficulty ambulating without assistance, and which he had always believed were related to service, but that he would never seek medical attention until some 48 years or more after service. Also, at the hearing before the undersigned in November 2012, the Veteran testified that he spoke to a VA representative about filing a claim around 1990, and that the representative reviewed his records and told him that he did not "have any rights." The Veteran figured the representative knew what he was talking about so he did not pursue it further until he spoke with "some other fellows" who told him something different, at which time, he decided to file a claim. (T p.8). Regarding the Veteran's testimony that he attempted to file a claim for back problems with VA in 1990, the Board does not find that this is plausible. As an initial matter, the Board notes that a VA representative in 1990, would not have had immediate access to his military records and could not have known that his military records were missing without requesting his records from the NPRC. The earliest power of attorney of record executed by the Veteran was in July 2007. In any event, the Veteran has not offered any explanation as to why he did not seek medical attention for his back problems at that time - either with VA or a private physician. That is, if the Veteran had a chronic back problem that was so severe in 1990, that it prompted him to speak with a VA representative about filing a claim, regardless of the information allegedly given to him by the representative, it is not believable that he would have waited a decade or more to seek medical attention for his claimed chronic back problems. Furthermore, the Board notes that when he was first seen by VA in June 2004, the Veteran did not report any specific medical problems and stated that he "just wants to get in the system." The Veteran denied any serious health problems and said that he "just takes a little Motrin occasionally for aches and pains." Other than a questionable history of hypertension, no pertinent abnormalities were noted on examination. Additionally, on a major depressive disorder (MDD) screen at that time, the Veteran specifically denied feeling down, depressed or hopeless in the past two weeks. Similarly, the Veteran made no mention of any back or psychiatric problems when seen by VA in March 2006 (twice) or September 2006, and MDD and PTSD screens in March 2006 were negative. The Veteran specifically denied feeling depressed, down, or hopeless in the previous two weeks, and denied that he ever experienced an event so frightening, horrible or upsetting that he had nightmares or thought about it when he did not want to, in the last month. The first reported complaint of any back problem to VA was in April 2007. That the Veteran would have chronic back problems and recurring nightmares since 1952, but that he would not mention any of these problems when initially seen by VA in 2004, or until nearly three years later raises serious doubts as to his reliability as an accurate historian, and undermines the probative value of his allegations. When there is a lack of continuity of medical treatment, it is crucial that lay evidence of continuity of symptoms be credible in order to fill the void of the absence of medical evidence. Finally, the Board notes that on his application for TDIU in October 2007, the Veteran reported that he worked in the oil fields as a pumper from 1974 to 1992. It is not credible that he would have been accepted for employment in a physically demanding job as an oil pumper at 45 years of age with a chronic back disability. Furthermore, that the Veteran would have chronic back problems so severe that it forced him to quit working in 1992, but that he would not seek medical attention for any back problems for at least another seven years is not believable. At this point, the Board notes that after obtaining the Veteran's authorization, the RO attempted to obtain his employment records from Texaco in January 2008. In February 2008, the RO was advised by Chevron (company that acquired Texaco in 2000) that they had no record of the Veteran's employment. The Veteran was advised of this by the RO, and indicated that he had no further employment information to provide. (See February 2008 Report of Contact). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In this case, unfortunately the Board cannot find the Veteran and his wife's recollections reliable, and consequently, their contentions of chronic low back and psychiatric problems since service are not credible. As noted above, where STRs are absent or missing, there is a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. The case law does not, however, lower the legal standard for proving a claim for service connection. Russo v. Brown, 9 Vet. App. 46 (1996). The in-service fall from a pole and hospitalization are conceded due to the missing service records through no fault of the Veteran. Concerning the Veteran's assertions that he has had chronic back problems ever since service, however, the Board notes that while he was requested to provide VA with the names and addresses of any healthcare providers who treated him for any back problems since service, the Veteran has not provided the identifying information of a single healthcare provider, other than his current family physician. A letter from that physician, Dr. J. McGouran, III, received in July 2007, stated that the Veteran was currently unemployed due to a "chronic back condition." Dr. McGouran did not provide any specific findings concerning the Veteran's back disability, nor did he relate any current back condition to service. Dr. McGouran went on to note that the Veteran served during the Korean Conflict, and opined that he was "affected by PTSD, due to his memories concerning this era." Again, Dr. McGouran did not provide any clinical findings or any discussion of the facts, and did not offer any explanation for his conclusions. In October 2011, the Veteran was examined by VA to determine the nature and etiology of his current low back and psychiatric problems. The examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical history and the clinical findings on examination. The examiner noted that the Veteran's STRs were unavailable for review, and that there was no documented evidence of a back injury in service or any back problems or arthritis within one year of discharge from service or until 2007. The examiner indicated that the objective evidence did not support that a significantly disabling condition occurred until 2007, and that there was no documented evidence of chronicity of symptoms subsequent to service. The examiner opined that it was less likely than not that the Veteran's current back disability was incurred or aggravated in service, or was otherwise related to service. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Court has held that a medical opinion containing only data and conclusions is not entitled to any evidentiary weight. See Nieves-Rodriguez, 22 Vet. App. 295, 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this regard, the Board finds Dr. McGouran's statement was wholly conclusory and provided no discussion of the facts or any reasoned analysis. The opinion was also rendered without review of the case file which contains such relevant facts as the Veteran's medical history and statements the Veteran made during the course of seeking medical treatment. Accordingly, the Board finds that the private medical opinion is of limited probative value. In contrast, the Board finds the October 2011 VA opinion persuasive. The VA examiner's negative opinion is largely based on the absence of medical evidence showing a "significantly disabling condition" until 2007 notwithstanding the VA examiner's notation that there was "no documented evidence for a back injury in the military" and the Board's concession based on lay evidence that a back injury occurred in service. A negative opinion based on the absence of treatment or complaints in service or since service when there is lay evidence of such inservice incurrence or continuity of symptoms may be based on an inaccurate factual premise depending upon the Board's factual finding of credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Here, it is the lack of continuity of medical treatment and lack of credible continuity of symptoms that the Board finds most probative in regard to whether entitlement to service connection for a back disability is warranted. The mere fact of an in-service injury is not enough; there must be chronic disability resulting from such injury. There is a lack of credible evidence that a chronic disability resulted from the in-service back injury. The Veteran's current low back pain is not credibly shown to be etiologically related to the in-service fall. For these reasons, the Board finds that service connection is not warranted. The preponderance of the probative evidence of record is against the claim. Therefore, the benefit of the doubt doctrine is not for application herein, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Psychiatric Disorder Concerning the Veteran's claim for an acquired psychiatric disorder, the evidence of record includes a diagnosis of PTSD-like symptoms (non-combat) and anxiety disorder, initially rendered by a social worker in September 2010, and a diagnosis of PTSD by a VA physician in January and April 2011. When interviewed by the social worker, the Veteran reported that he had nightmares about his fall from a telephone pole in service. However, on the VA psychiatric outpatient notes in January and April 2011, the Veteran's only reported stressor was nightmares about the pervasive racism in service and his feelings of being in constant danger. In both instances, the diagnoses were rendered based entirely on the Veteran's self-described history. In October 2011, the Veteran was examined by VA to determine the nature and etiology of his reported psychiatric problems. The examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical history and current findings. The Veteran reported that he fell off a telephone pole in service, and that he believed that it caused him to have a fear of heights and nightmares. The Veteran indicated that his nightmares might have started when he stopped drinking in the 1970s. The Veteran also mentioned that there was a lot of racial tension in service, but said that he didn't think that this was a significant stressor. The Veteran reported that he had nightmares about someone chasing him and fighting, but said that he did not engage in any of these activities. The examiner commented that while the Veteran was bothered by a variety of nightmares, this did not mean that he had PTSD or another psychiatric disorder. The examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD under DSM-IV, and that the appropriate diagnosis was adjustment disorder. The examiner opined that the Veteran's adjustment disorder with anxiety and occasional depressed mood was at least as likely as not related to his chronic back pain. The examiner indicated that if the Veteran's back pain was caused by a fall in service, that it was at least as likely as not that his current adjustment disorder was related to service. In this case, the Board finds the October 2011 VA psychiatric opinion persuasive as it was based on a thorough examination of the Veteran and included a detailed discussion of all relevant facts. The examiner offered rational and plausible explanation for concluding that the Veteran does not meet the criteria for a diagnosis of PTSD, and that his current adjustment disorder was due to his low back pain. See Wray v. Brown, 7 Vet. App. 488, 493 (1995). In contrast, the Board finds that the diagnosis rendered on the VA outpatient notes are less persuasive, as the reports did not include any discussion or analysis of the facts, and offered only a conclusory opinion. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that a medical opinion does not hold probative value when it fails to provide sufficient detail and rationale to allow the Board to make a fully informed evaluation of the disability). Also, the diagnosis is not credible because it is based on an unreliable history provided by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (reaffirming that in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the veteran if they have been found to be inaccurate or because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (indicating that a medical opinion based upon an inaccurate factual premise has no probative value). The Board finds it very problematic that the report of and reported content of the Veteran's nightmares have been inconsistent over the years. In June 2004, on a major depressive disorder (MDD) screen at that time, the Veteran specifically denied feeling down, depressed or hopeless in the past two weeks. MDD and PTSD screens in March 2006 were negative. The Veteran denied feeling depressed, down, or hopeless in the previous two weeks, and denied that he ever experienced an event so frightening, horrible or upsetting that he had nightmares or thought about it when he didn't want to, in the last month. A VA PTSD screen in April 2007 was similarly negative. A VA PTSD screen in May 2010 was noted to be positive by a nurse but on subsequent review by a staff physician it was concluded that there was "[n]o mental health condition requiring further intervention." As noted above, it was not until September 2010 that a psychiatric condition was diagnosed. When interviewed by the social worker, the Veteran reported that he had nightmares about his fall from a telephone pole in service. However, on the VA psychiatric outpatient notes in January and April 2011, the Veteran's only reported stressor was nightmares about the pervasive racism in service and his feelings of being in constant danger. Historically, in the Veteran's stressor statement dated in January 2008, he reported that he had PTSD because of the in-service fall. In VA Form 9 dated in October 2008, the Veteran maintained that he had nightmares regarding the fall. At the February 2009 DRO hearing, the Veteran indicated that he had nightmares about the fall. At the June 2011 Board hearing, the Veteran testified that he had PTSD manifested by nightmares about the fall. The content of the nightmares shifted in 2010 to include nightmares about pervasive racism in service. The denial of relevant symptoms when specifically asked from 2004 to 2010 and the shift in reporting of the stressor claimed to have caused the PTSD renders the diagnosis provided in the VA outpatient notes not credible. The Board also finds the letter from Dr. J. McGouran, III, received in July 2007, not persuasive. Dr. McGouran noted that the Veteran served during the Korean Conflict, and opined that he was "affected by PTSD, due to his memories concerning this era." Dr. McGouran did not provide any clinical findings or any discussion of the facts, and did not offer any explanation for his conclusions, and therefore, his opinion is of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (providing that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). The provisions of 38 C.F.R. § 3.310 only apply to service connection for secondary disabilities caused by a service-connected disability. In this case, service connection for a low back disability has been denied. Accordingly, there is no legal basis of entitlement to secondary service connection because the Veteran has not been granted service connection for the disorder that he alleges caused his acquired psychiatric disorder. Therefore, with respect to the claim of secondary service connection, application of the law to the facts is dispositive, and the appeal must be terminated because there is no entitlement under the law to the benefit sought. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). As there is no credible or probative medical evidence of record showing a connection between the Veteran's current psychiatric disorder and service or a service-connected disability, and no credible evidence of any manifestations of a psychiatric disorder until more than 56 years after his discharge from service, the Board finds that the greater weight of the evidence is against the claim. TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether an individual is unemployable by reason of service-connected disability, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). Age may not be considered a factor. 38 C.F.R. § 3.341 (2010). Unemployability associated with advancing age or nonservice-connected disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2012). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In this case, the Veteran does not have a service-connected disability. Therefore, he does not meet the minimum criteria for entitlement to TDIU. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for a favorable disposition of the Veteran's claim. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is denied. Service connection for an acquired psychiatric disorder, to include PTSD is denied. Entitlement to TDIU is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs