Citation Nr: 1755040 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 09-17 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection, to include on a secondary basis, for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from January 1975 to April 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This matter was remanded by the Board in April 2013, October 2015, and March 2017 for further development. Such development having been substantially completed, the matter is now ready for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). FINDINGS OF FACT 1. The current lumbar spine disorder is not shown to be the result of a disease or injury in active military service, and is not shown to have manifested in service or within one year from the date of separation from active service. 2. A current acquired psychiatric disorder, including major depressive disorder or a depressive disorder not otherwise specified, was not caused or aggravated by a disease or injury in service or service-connected disability. CONCLUSIONS OF LAW 1. Service connection for a lumbar spine disorder is not established. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. Service connection for an acquired psychiatric disorder, to include as on a secondary basis, is not established. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Neither the Veteran, nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In January 2016, in response to a development letter following the October 2015 remand, the Veteran submitted an authorization and consent form for records to be obtained on his behalf. The records were not obtained. As a result, the Board remanded the appeal again in March 2017. In compliance with the March 2017 remand, the AOJ requested that the Veteran complete the appropriate authorization so that it could obtain records on his behalf. The earlier authorization and consent forms had expired. In response to the development letter, in April 2017, the Veteran submitted as statement requesting that the AOJ allow him more time to respond to the development letter and did not submit any additional authorization forms. In the April 2017 correspondence, the Veteran also informed the AOJ that he had a VA outpatient appointment scheduled in June 2017 that he believed would be beneficial to his case. The AOJ waited an additional five months before it issued the supplemental statement of the case (SSOC) in September 2017. The Veteran did not submit any additional evidence during that time. Both the Veteran and his representative reviewed the SSOC and neither the Veteran, nor his representative, indicated that any pertinent evidence remained outstanding. Rather, the Veteran submitted a signed due process waiver, requesting that his case be immediately sent to the Board for adjudication and his representative submitted a brief in November 2017. Thus, the Veteran is not prejudiced by the Board proceeding to adjudicate the claim at this time. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104 (a) (West 2014); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran asserts that he has a lumbar spine disorder that is directly related to two motor vehicle accidents in service. He also asserts that he has an acquired psychiatric disorder that is either directly related to service, or caused or aggravated by his lumbar spine disorder. a. Lumbar Spine There is no dispute that the Veteran a current lumbar spine disability. See e.g. May 2017 VA X-ray report documenting degenerative disc disease at L5-S1. Other VA treatment records also indicate fracture of L1 and L4. Likewise, there is no dispute that the Veteran had an in-service injury involving two motor vehicle accidents (MVAs) in December 1977. Service treatment records document multiple treatments for complaints of low back pain following the accidents. The assessment in service was lumbar strain. See e.g. January 1978 Service Treatment Record. The Veteran's service separation examination report noted that his spine was normal on examination although the Veteran reported having chronic back pain on his Report of Medical History at separation. As the current diagnosis of degenerative disc disease or arthritis was not noted during service or within one year of service, service connection is not available on a presumptive basis. The Veteran reports that he has experienced intermittent back pain since service. See e.g. May 2009 Substantive Appeal Form 9. The Board is not able to grant service connection on the basis of continuity of symptomatology in this case, however, as there is affirmative evidence of at least one significant, intervening injury since service. In this regard, VA treatment records and SSA records confirm that during an October 2001 civilian work accident, a load of heavy boxes fell on the Veteran's head from 15 feet above him. The evidence indicates that the injury was so severe that the Veteran was unable to continue to work after the injury. The injury is consistently referred to as a "crush injury" in the record. As a result of the event, the Veteran suffered a fracture of L1 and L4. Thus, the issue at present is whether the current disability is related to the injury in service. The Veteran was provided with multiple VA examinations in connection with the claim. As discussed in the October 2015 Remand, the July 2007 opinion was inadequate as the examiner did not provide sufficient rationale for the opinion. Specifically, the July 2007 VA examiner did not address why, in light of the Veteran's statements regarding continuity of symptomatology since service, his current disorder was more likely related to 2001 injury instead of the service MVAs. In accordance with the October 2015 remand, a VA opinion was obtained in January 2016. The January 2016 VA examiner provided a negative nexus opinion but did not explain the basis for the opinion. In May 2016, another examiner reviewed the evidence, including the Veteran's statements, and noted that her opinion was congruent with the January 2016 VA examiner's opinion. The May 2016 VA examiner explained that the work-related injury in the early 2000's was the more likely cause of the Veteran's lumbar condition as the trauma was severe enough to generate multi-level compression fractures with nonunion. The examiner explained that the fact that the Veteran was a laborer and worked in cement for many years after the MVAs in service, meant that the MVAs did not result in major injury or symptomatology because work in such a field is physically demanding. The examiner also found that another intervening MVA in 1986 in which the Veteran experienced facial injury and whiplash would have increased the Veteran's risk for disc issues but that the major trauma in 2001 and the Veteran's heavy labor employment, along with inflammatory effect of drug use in the past, provided a greater likelihood that the Veteran's current back problem was not incurred on active duty. In March 2017, the Board once again remanded the claim because it appeared that treatment records remained outstanding and that such treatment records, if associated with the file, may affect the VA examiner's opinion regarding whether any current lumbar spine disorder is related to service. Additional VA treatment records were obtained, although as explained above, no additional private treatment records were obtained. A VA addendum opinion was obtained in May 2017. The May 2017 VA examiner determined that the Veteran's current disorder is more likely due to the intervening crush injury in October 2001 and is less likely than not related to the motor vehicle accidents in service. In reaching this conclusion, the examiner considered the Veteran's statements that he suffered continuous back symptoms since service. However, the examiner explained that X-rays at the time of the motor vehicle accidents in service were negative for acute or chronic changes in the lumbar spine. The examiner also explained that she found it significant that the Veteran worked in the field of cement masonry for many years following service. The examiner cited the Department of Workforce description of cement masonry work requirements including all of the physical requirements for such a job. The examiner found it significant that the Veteran was able to meet these strenuous requirements for over 20 years post-service. The examiner also found it significant that the Veteran's injury from the motor vehicle accidents in service were not as severe as the post-service crush injury. For all of these reasons, the examiner found that the Veteran's current disability is related to the intervening injury in 2001 rather than service. The Board places a high probative value on the May 2016 and June 2017 VA opinions as the examiners reviewed the Veteran's file and offered a comprehensive discussion analyzing all of the pertinent evidence of record and explaining the bases for the opinions. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). There are no medical opinions in favor of the claim. The Board appreciates that the Veteran believes his current disability is related to service, but finds that his opinion has no probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, determining whether current disability is due to a particular injury, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim and service connection for a lumbar spine disorder must be denied. b. Acquired Psychiatric Disorder Regarding the claimed psychiatric disorder, there is no dispute that the Veteran has a current disability. See e.g. June 2017 VA examination report which noted a diagnosis of major depressive disorder, recurrent (MDD). VA treatment records also indicate a diagnosis of depressive disorder not otherwise specified. There is also evidence of in-service reports of feeling depressed. See January 1978 Report of Medical History. However, no diagnosis of a depressive disorder was rendered in service. The Veteran's psychiatric condition was noted to be "normal" at separation. See April 1978 Report of Medical Examination. With respect to the Veteran's assertion that his acquired psychiatric disorder was caused or aggravated by the lumbar spine disorder, as service connection for the lumbar spine disorder is denied herein, service connection is not warranted on a secondary basis. Thus, the issue at present is whether the current disability is related to the complaints of feeling depressed in service. A VA opinion was obtained in June 2017 to address whether any acquired psychiatric disorder was related to service. The June 2017 VA examiner determined that the Veteran's current disability was less likely than not related to service. The examiner acknowledged that the Veteran reported multiple symptoms including excessive worry/depression, in January 1978. The examiner noted that a February 1978 treatment record found the Veteran's depression to be situational and qualitatively different from major depressive disorder. The VA examiner found it significant that the service physician noted that the Veteran was unhappy but was not sick. The examiner also noted that a February 1978 service treatment record indicated that the Veteran had moderate, passive aggressive personality. The June 2017 VA examiner considered the diagnoses of MDD as well as depressive disorder not otherwise specified, in September 2010 VA outpatient problem lists. The VA examiner determined that the Veteran's problems with Recurrent Major Depressive Disorder appeared to develop after the 2001 MVA. The examiner also found that the Veteran's MDD condition was not related to his military service, given the nature of the depressive episode in 1977-78, the 20 year period or so of no reported treatment for depression, and major depressive episode developing after the 2001 accident at work. The Board affords the June 2017 VA opinion a high probative value. In this regard, the examiner reviewed the Veteran's file and offered a comprehensive discussion analyzing all of the pertinent evidence of record and explaining the basis for the opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). There are no medical opinions in favor of the claim. The Board notes that there is a letter from the Veteran's friend, D.A., who described noticing a change in the Veteran's personality after service. He indicated that the Veteran used to be friendly, patient, non-intrusive, and respectful, prior to service. D.A. also noted that the Veteran told him about severe episodes of depression related to career and events occurring during service. The Board appreciates that the Veteran and his friend, D.A. believe that the Veteran's current disability is related to service, and that they are both competent to report their personal observations. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board affords the lay opinions no probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, determining whether a depressive disorder is due to depressive symptoms in service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim and service connection for an acquired psychiatric disorder must be denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for a lumbar spine disorder, is denied. Service connection for an acquired psychiatric disorder, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs