Citation Nr: 1613440 Decision Date: 04/01/16 Archive Date: 04/13/16 DOCKET NO. 09-18 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for an acquired psychiatric disorder also claimed as secondary to a low back disorder. REPRESENTATION Appellant represented by: Peter Meadows, Attorney at Law ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from April 1970 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was remanded for further development in October 2009. In March 2011, the Board denied the claims of entitlement to service connection for a low back disorder and an acquired psychiatric disorder, to include as secondary to a low back disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2011 order, the Court remanded the case to the Board for action consistent with the October 2011 Joint Motion to Vacate and Remand (JMR). The case was remanded in June 2012 for further development. FINDINGS OF FACT 1. Lumbar scoliosis with degenerative disc disease and spondylosis is as likely as not due to service. 2. An acquired psychiatric disorder to include major depressive disorder is as likely as not due to the lumbar scoliosis with degenerative disc disease and spondylosis. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the criteria for service connection for lumbar scoliosis with degenerative disc disease and spondylosis are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. With resolution of reasonable doubt in the appellant's favor, the criteria for service connection on a secondary basis for an acquired psychiatric disorder to include major depressive disorder are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In light of the favorable decision to grant the Veteran's claims of service connection, any deficiency as to VA's duties to notify and assist, pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is rendered moot. ANALYSIS The Veteran appeals the denial of service connection for a lumbar spine disability and an acquired psychiatric disorder. He argues that his back problems started in service and have continued since that time. The Veteran also claims that his major depressive disorder is secondary to his low back disorder. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). After weighing the evidence, the Board finds in favor of the Veteran's claim for service connection for a lumbar spine disability. To that end, the Veteran has been diagnosed with lumbar scoliosis with degenerative disc disease and spondylosis. Service treatment records show he complained of back pain of a month and a half duration in June 1970. The Veteran has also presented lay evidence of in-service back problems. He is competent to report such problems and the circumstances surrounding such. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran's statements regarding in-service back problems to be credible. In this matter, the Board has been presented with conflicting medical opinions regarding the etiology of the Veteran's lumbar spine disability. The May 2008 VA examiner diagnosed the Veteran with mild lumbar scoliosis and moderate degenerative space narrowing but found that it would be with resort to mere speculation to opine if his current low back condition was caused by or the result of active duty. She noted that the Veteran complained of low back pain in service in June 1970 but that x rays were negative. She further commented that a significant amount of time has elapsed since the Veteran was released from active duty and that post service he has had jobs that are high risk for developing a low back injury. In October 2008, however, another VA examiner noted that the Veteran had been treated for six weeks for back pain as documented in 1970. He personally viewed these records with the Veteran, at his request. In his opinion, it was likely that the Veteran's current back pain is related to the original injury in the military in some fashion. In an August 2009 statement prepared by the Veteran's representative, it was noted that the Veteran suffered a back injury in service and that he reinjured his back numerous times since service. Given the facts outlined in the statement, Dr. H rendered his signature agreeing that the Veteran's chronic back pain was at least as likely as not related to service. Records received from the Social Security Administration show that the Veteran complained of back pain from a work related injury in 2006. During that time, he reported having back problems from the past. In April 2012, Dr. W, noted that the Veteran was placed on light duty while in service due to back problems and that he reports that he has had continued back pain ever since. After review of the service treatment records and his clinical interview of the Veteran, Dr. W opined that it was at least as likely as not that the Veteran's currently diagnosed low back disorder-degenerative disc disease had its origins in service and/or was related to his service. In contrast, in July 2014, the VA examiner opined that the Veteran's claimed lumbar spine degenerated joint disease (claimed as a back pain) was not caused by any diagnosed condition during his active duty. He reasoned that the Veteran's back pain complaint was in 1971, and there is no other documentation to show that his back pain with normal imaging study has progressed to the current degenerative joint disease. He found that there was no evidence of in-service incurrence of the lumbar spine degenerative joint disease or aggravation during that time. Here, the Board has been presented with conflicting evidence regarding the etiology of the Veteran's lumbar spine disability. The Board notes, however, that the Veteran has presented credible evidence of in service back problems and continued back problems since service. Although his lumbar spine disability was not formally diagnosed in service, his statements in conjunction with the opinions from the October 2008 VA examiner, Dr. H and Dr. W place the evidence at least in equipoise. Accordingly, the claim is granted. In doing so, the Board also finds that service connection for an acquired psychiatric disorder to include as secondary to a low back disorder is warranted. To that end, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). The record contains positive evidence addressing the relationship between the Veteran's acquired psychiatric disability and his now service connected lumbar spine disability. During the May 2008 VA examination, depressive disorder not otherwise specified was diagnosed. While the VA examiner found that his disability did not have its onset in service, it was noted that he had multiple stressors including financial and back pain which can contribute to the current depression. In a private May 2008 psychological evaluation, major depressive disorder and pain disorder were diagnosed. In April 2012, private examiner Dr. W opined that it was at least as likely as not that the Veteran's currently diagnosed depressive disorder had its origins in service and/or was related to his service. Dr. W further agreed that the currently diagnosed chronic back pain contributed to the Veteran's depressive disorder. The July 2014 VA examiner opined that it was less likely as not that the unspecified depressive disorder is the result of injury or disease incurred or aggravated during active duty. The VA examiner, however, noted that the Veteran experienced significant post military stressors to include, according to a January 2009 Psychiatry Initial Assessment, depression and anxiety. The VA examiner referenced the note that stated the Veteran's chief complaint was that he was "struggling with back pain and financial problems." The Board is mindful that the Veteran's depressive disorder has been linked to financial stressors as well as his back pain. The Board finds, however, that the Veteran's credible statements, outpatient treatment records, the May 2008 VA opinion and the April 2012 opinion of Dr. W place the evidence at least in equipoise. Accordingly, the claim of entitlement to an acquired psychiatric disorder to include major depressive disorder as secondary to the lumbar scoliosis with degenerative disc disease and spondylosis is granted. To the extent that the record contains a diagnosis of posttraumatic stress disorder and the Veteran has claimed such is service related, the Board notes that the March 2011 Board decision found against this claim and no error on this matter was found in the October 2011 JMR and/or Court order. That decision, therefore, remains final as to this issue. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, resolving reasonable doubt in his favor, service connection for lumbar scoliosis with degenerative disc disease and spondylosis and service connection for an acquired psychiatric disorder to include major depressive disorder as secondary to lumbar scoliosis with degenerative disc disease and spondylosis is granted. ORDER Entitlement to service connection for lumbar scoliosis with degenerative disc disease and spondylosis is granted. Entitlement to an acquired psychiatric disorder to include major depressive disorder as secondary to lumbar scoliosis with degenerative disc disease and spondylosis is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs