Citation Nr: 1328179 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-12 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a chronic acquired psychiatric disorder. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1973 to August 1975. This case comes before the Board of Veteran Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied service connection for a psychiatric disorder and denied reopening of service connection for a chronic low back condition. In October 2010, the Veteran was afforded a Board video hearing from the RO before the undersigned in Washington, DC. A transcript of the hearing is of record. The issue of service connection for a low back disability was reopened in a November 2010 Board decision. Further, in November 2010, the Board remanded the claims currently on appeal for further evidentiary development of requesting outstanding post-service VA and private treatment records and to obtain VA examinations for the Veteran's psychiatric and low back disabilities. This was accomplished, and the claims were readjudicated in a February 2012 supplemental statement of the case. As it pertains to the issue of service connection for a low back disability, the Board finds that the November 2010 remand orders have been substantially complied with, and it may proceed with a decision at this time. 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 issue of entitlement to service connection for a chronic acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The Veteran has currently diagnosed degenerative disc disease (DDD) of the lumbar spine. 2. In-service treatment records reveal complaints and treatment for back strain. 3. The Veteran's currently diagnosed DDD is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A January 2007 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The letter notified the Veteran that his claim for service connection for a low back disability was denied because there was no evidence of a chronic disability post service. The Veteran also received notice in compliance with Dingess. With regard to the duty to assist, service treatment records, service personnel records, VA treatment records, private treatment records, and the Veteran's statements, including the transcript from the October 2010 Board hearing have been obtained and associated with the claims file. Further, the RO arranged for VA examinations in December 2010. For reasons discussed in detail below, the Board finds the VA examinations to be adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor his representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition of DDD of the low back is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Service Connection for a Low Back Disability The Veteran asserts that his current back disability had its onset during service. Specifically, the Veteran has stated that during service he injured his back unloading mail trucks. See October 2010 Hearing Transcript at pg. 9. At the outset, the Board finds that the Veteran has currently diagnosed DDD of the lumbar spine. See January 2004 VA treatment record and December 2010 VA examination report. Next, the Board finds that the Veteran's currently diagnosed DDD of the lumbar spine was not incurred in and is not otherwise etiologically related to service. In this regard, the Board finds that service treatment records weigh against a finding that currently diagnosed DDD is related to service. For example, the Veteran sought treatment for back pain during service in October 1974. The Board notes that the specifics of the low back injury were not reported; however, the in-service physician noted a diagnosis of "back strain" as due to heavy lifting and placed the Veteran on restrictive duty with no lifting over 15 pounds for a period of 14 days. Subsequent to the October 1974 in-service treatment, the remaining service treatment records are negative for any further complaints, treatment, or diagnoses relating to the Veteran's low back. Moreover, a January 1975 report of medical examination revealed normal clinical evaluation of the Veteran's spine. Similarly, the May 1975 service separation medical examination revealed a normal clinical evaluation of the Veteran's spine. For these reasons, the Board finds that service treatment records weigh against a nexus to service as they demonstrate that the Veteran's back strain resolved in service and was not chronic. Moreover, post-service VA treatment records reveal that the Veteran first sought treatment for low back pain in January 2004, when he was diagnosed with DDD of the lumbar spine, approximately 29 years after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor for consideration in deciding a claim). Further, during the January 2004 VA evaluation, the Veteran did not state that he believed his low back pain was due to an in-service injury. The remaining VA treatment records do not demonstrate any follow-up treatment for low back pain or other DDD symptoms. Further, although private treatment records reflect that the Veteran has been prescribed pain medication, this appears to be related to the Veteran's left ankle and left leg pain, and not for low back pain. See private treatment notes from Dr. R.G. dated September 2010 to March 2011. Accordingly, upon review of the evidence, the Board finds that post-service VA and private treatment records weigh against a finding of a nexus to service as they do not reflect that the Veteran has experienced persistent symptoms associated with a low back disability since service separation. Further, aside from statements made pursuant to his current claim for VA compensation, the Veteran has not reported to medical professionals that his low back disability is due to an in-service injury or that he has experienced low back symptoms since the in-service strain. See Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1991) (interest may affect the credibility of testimony). Pursuant to the November 2010 Board remand directives, the Veteran was afforded a VA examination in December 2010 to assist in determining whether the Veteran's low back disability was related to service. The December 2010 VA examiner reviewed the claims file, interviewed the Veteran, conducted a physical examination of the Veteran's spine, and reviewed x-ray findings. According to the December 2010 VA examiner, the current x-rays revealed "very, very minimal degenerative changes that are typical for aging." Further, the VA examiner stated that service treatment records did not indicate that the Veteran had a specific injury to his back. In addition, the VA examiner noted that there were no medical records documenting a back problem from the date of discharge in 1975 to 2004. This, according to the VA examiner, showed a lack of chronicity of any kind of problem the Veteran may have had in service. Further, the examiner noted that there was no indication of traumatic change in any of the lumbar spine. Therefore, the VA examiner opined that the Veteran's current back problem was age-acquired degenerative disc disease of the lumbar spine and was not caused by or a result of military service. The Board finds that the December 2010 VA examination report is further evidence weighing against a relationship between the post-service low back DDD and service, including the in-service strain injury. In making this determination, the Board has also considered the Veteran's statements asserting a nexus between his currently-diagnosed DDD of the lumbar spine and service. While the Veteran is competent to report symptoms as they come to him through his senses, DDD of the lumbar spine, which usually requires x-rays or an MRI to even diagnose, is not the type of disorder that a lay person can provide competent evidence on questions of etiology. See Layno, 6 Vet. App. at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker, at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Here, the Board finds that the Veteran does not have the education, training, or experience to provide a competent opinion as to the etiology of his DDD disorder, especially in the context of absence of symptoms or treatment for decades after service. Instead, the Board finds the December 2010 VA examination medical opinion, which was based on a review of accurate facts in the claims file, history by the Veteran, x-ray findings, and an examination of the Veteran, to be the most competent and probative evidence of record. For these reasons, and based on all the evidence of record, both lay and medical, the Board finds that the weight of the competent and probative evidence is against a finding of relationship between the Veteran's current DDD of the lumbar spine and service, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is denied. REMAND As discussed above, the Board remanded the case in November 2010 for a VA examination to address the nature, extent, and etiology of the Veteran's diagnosed acquired psychiatric disorders. In a December 2010 VA psychiatric examination report, the VA examiner noted that the claims file was reviewed. After interviewing the Veteran and performing a mental status examination, the VA examiner diagnosed the Veteran with major depressive disorder and polysubstance dependence in remission. The VA examiner opined that the Veteran's psychiatric disorders were not likely a result of service. During the description of the Veteran's military history, the VA examiner noted that the Veteran indicated that he received some psychiatric treatment during service. However, according to the VA examiner, "there were no records in the chart indicting that this did actually occur." The Board finds the December 2010 VA medical opinion is inadequate as it is based on an inaccurate factual history. To be adequate, a medical opinion must be based upon an accurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Specifically, there are service treatment records in the claims file indicating that the Veteran did in fact receive psychiatric treatment in service. For example, in a June 1975 consultation report, the Veteran reported feeling "very nervous" and at times became "very shaky." He also reported symptoms of insomnia, weight loss, feeling tense, and trembling. The Veteran also claimed auditory hallucinations. The June 1975 mental health professional noted that the Veteran had been seen at the clinic on three occasions. It was also noted that the Veteran should continue outpatient treatment. Moreover, a May 1975 report of mental status evaluation is also in the service treatment records. This further suggests to the Board that the Veteran was examined for some psychiatric symptoms during service. The Board notes that the December 2010 VA examiner did not discuss any of these service treatment records which directly related to in-service psychiatric symptoms or treatment. Accordingly, the Board finds that a remand for an addendum VA opinion is necessary in order to consider these in-service psychiatric treatment notes and in-service psychiatric symptoms. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Further, the last VA treatment record is dated March 23, 2011 from the Houston VA Medical Center (VAMC). On remand, updated VA treatment records should be obtained and associated with the claims file or the Virtual VA electronic claims file. Accordingly, the issue of service connection for a chronic acquired psychiatric disorder is REMANDED for the following actions: 1. The RO/AMC should obtain all treatment records from the Houston VAMC from March 24, 2011 to the present. Any documents received by VA should be associated with the record. Any negative responses should be properly documented in the record. 2. Then, the RO/AMC should obtain a VA addendum medical opinion from the examiner who conducted the December 2010 VA psychiatric examination. If that examiner is not available, obtain an opinion from another appropriate VA examiner. If the examiner determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled; however, the Veteran should not be required to report for another examination if it is not found to be necessary. The relevant documents in the claims folder should be made available to and reviewed by the VA examiner. Based on the review of the relevant evidence in the claims folder, to include the in-service May 1975 mental status evaluation and the June 1975 clinical consultation report, the VA examiner should provide the following opinion: Is it as least as likely as not (i.e., 50 percent or greater probability) that the Veteran's psychiatric disorder, to include MDD, had its onset in service or is otherwise related to service? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. 3. Then, readjudicate the remanded claim for service connection for a chronic acquired psychiatric disorder. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs