Citation Nr: 1756730 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-47 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a low back disorder, to include degenerative joint disease and degenerative disc disease, and to also include as due to herbicide exposure. 3. Entitlement to service connection for a respiratory disorder, to include as due to herbicide agent and/or asbestos exposure. 4. Entitlement to service connection for migraine headaches, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Alexander Neff, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from January 1973 to August 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In the June 2013 decision and remand, the Board denied the Veteran's claim for soft tissue sarcoma. It additionally remanded the claims of acquired psychiatric disorder, low back disorder, respiratory disorder, and migraine headaches for further evidentiary development, to include VA examinations, and reajudication. FINDINGS OF FACT 1. A psychiatric disability, to include PTSD, was not manifested in service and was not shown to be related to his service. 2. A headache disability was not manifested in service and was not shown to be related to his service. 3. The Veteran does not have a current respiratory disability; one was not manifested in service; nor was one shown to be related to his service. 4. A low back disability was not manifested in service and was not shown to be related to his service. CONCLUSIONS OF LAW 1. Service connection for a psychiatric disability, to include PTSD, is not warranted. 38 U.S.C.A. §§ 1110, 5107 (2012); 38 C.F.R. § § 3.102, 3.303, 3.304, 3.307, 3.309(a) (2017). 2. Service connection for a headache disability is not warranted. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304, 3.307, 3.309(a). 3. Service connection for a respiratory disability is not warranted. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304, 3.307, 3.309(a). 4. Service connection for a low back disability is not warranted. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Legal Criteria A. Duties to Notify and Assist In December 2008, the RO advised the Veteran that it was unable to locate his service treatment records (STRs) from January 1973 to August 1973, and requested the Veteran to provide same if they were in his possession. The Veteran did not provide the RO with the outstanding STRs. In a January 2009 memorandum, the RO provided a history of its attempts to obtain the Veteran's STRs. It additionally made findings that: all procedures to obtain the records were correctly followed; all efforts to obtain the needed military information have been exhausted; and that further efforts to obtain the records are futile and based on the facts the record is not available. As such, the Board finds that VA met its duty to assist in regards to these records. In cases where an appellant's STRs are unavailable, there is a heightened obligation to explain findings and conclusions and to carefully consider the benefit of the doubt doctrine under 38 U.S.C.A. § 5107(b). 38 U.S.C.A. § 7104(d)(1); see also Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). It is emphasized that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing service treatment records do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claims for service connection by showing he has the claimed disability and suggesting there is a correlation (i.e., nexus) between his claimed disability and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401 (1991) and O'Hare, 1 Vet. App. at 367). In June 2013, the Board remanded the claim for further evidentiary development to include obtaining records regarding the Veteran's psychiatric, respiratory, back, and headache claims, and to provide VA examinations, or opinions, for same. Notably, the Board requested that the RO obtain records from the Central New York Psychiatric Center. In July 2013, the RO sent the Veteran a request for information, explaining that it sought the medical records from the Veteran, to include any from the Central New York Psychiatric Center, and included an Authorization and Consent to Release Information form, and a Statement in Support of Claim Form. That month, the Veteran responded that he had sent state mental health records to VA, and that he would send additional materials. Accordingly, the Board finds that the RO was in substantial compliance with its remand directives. As such, VA's duty to assist regarding these records is met. The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). B. Service Connection Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Certain chronic disabilities (such as headaches and arthritis and psychoses), 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, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, a nexus to service may be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker, 708 F.3d 1331. Certain disabilities associated with exposure to herbicide agents are considered to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more at any time after service. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, to include herbicide, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As an initial matter, the Board notes that in the June 2013 Board decision and remand, the Veteran was found to be presumptively exposed to herbicide agents as a "brown water" sailor. Additionally, his stressor for fear of death during mine sweeping in service was found to be verified. However, the preponderance of the evidence is against a finding that the Veteran has had a listed Agent Orange disease at any time during the appeal with respect to his respiratory, back, and headache claims. Regarding asbestos-related claims, the Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part IV, Subpart ii, Chapter 2, Section C, Topic 2 (Mar. 4, 2017). In this regard, the M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: fibrosis, including asbestosis or interstitial pulmonary fibrosis; tumors; pleural effusions and fibrosis; pleural plaques, mesotheliomas of pleura and peritoneum; and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). See M21-1, part IV, Subpart ii, Chapter 2, Section C, Topic 2(b). However, service connection is not automatic and a probative medical nexus opinion is still required. The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2(d). The M21-1 provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Diagnostic indicators include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2(g). In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Acquired Psychiatric Disorder A. Factual Background In military personnel records from November 1972 to January 1973, prior to active duty service, the Veteran received ratings of 3.6 out of 4 for: professional performance, military behavior, leadership and supervisory performance, military appearance, and adaptability. In an April 1973 military record, the Veteran was declared a deserter. He was AWOL from the U.S.S. Buck since March 1973, which at that time was located in San Diego, California. In a military personnel record from July 1973, the Veteran was awarded a 2.6 in military behavior for continued violations of the UCMJ. In an assessment from this time, the Veteran's performance was found to be highly unsatisfactory. It took at least two supervisors to get a very minimum product from him. The tasks he completed independently and individually had to be redone by others. His performance was inadequate when compared to others of his rate. He had no desire to learn or perform, and when he was sent to do jobs he would negligently lose his tools. He needed constant supervision, and his mind was never on the job. He noted to have no concept of military behavior, and he accepted little authority and questioned the rest. He appeared sloppy and unkempt, and had no desire to improve. He was reported to have constantly upset others within his division in regards to his cleanliness habits, and refused to get along with anyone. He refused to participate in any activities that concerning his division or ship. In nine months of active duty he received six nonjudicial punishments. In a July 1973 medical evaluation, the Veteran's in-service medical history was summarized. He was evaluated by a psychiatrist at the time of enlistment for recurring headaches, and no etiology was found at that time. His sick call attendance was noted to be exemplified by various aches and pains that were not been found to have an organic basis. When he was confronted with acts of wrong doing, he attempted to evade punishment either by drug usage (glue sniffing), or by developing somatic complaints that, at the time of the evaluation, were not found to have an organic etiology. His acts of wanton disobedience were noted as purely impulsive and totally without the regard of other people. The psychiatrist opined that he should be classified as having a sociopathic personality disorder. In an October 1991 VA medical record, the Veteran was diagnosed with alcohol abuse and depression. In a February 1993 VA medical record, he was noted to have problems with: impulse control; appropriate expressions of anger; and his ability to function within a structured environment. He was assessed with possible depression. In a September 1993 VA medical record, the Veteran was diagnosed, in part, with panic and anxiety. During this time he was also diagnosed with dysthymic disorder. In VA medical records from February 1994, during alcohol detox, the Veteran was diagnosed, in part with a mixed personality disorder and panic disorder. Regarding PTSD, records from this time revealed findings that the Veteran had an clinician's impression of PTSD, and that he did not have PTSD symptomatology organically. In a March 1994 VA medical record, the clinician found that there was no evidence of psychosis or a major mood disorder, and to rule out PTSD. He diagnosed the Veteran with alcohol dependency and a mixed personality disorder. In a November 1996 state correctional medical record, regarding his complaints of tension headache, the Veteran was noted to have a possible drug seeking personality. In an April 1999 state correctional medical record, the Veteran complained of severe anxiety attacks that occurred at night. He additionally noted that he would develop copious amounts of saliva which would then lead to panic attacks. The clinician noted that the Veteran had a history of panic attacks. In a July 1999 VA medical record, the Veteran reported that he had difficulty following orders and that he had gotten into several fights. He was diagnosed with Axis I interpersonal problems not otherwise specified, and Axis II antisocial personality disorder. In an October 1999 state correctional medical record, the Veteran reported anxiety and panic related to exhaustion of his criminal appeals. He was noted to have diagnosis of anxiety/panic disorder with strong somatization. In a January 2007 prison physical, the Veteran claimed that he had PTSD. In June 2007, the Veteran claimed that he had PTSD in relation to his service in Vietnam in 1973. In August 2007, he claimed that the U.S.S. Vancouver was involved in combat and was "hit," and that he was exposed to "shooting and intense military action." He additionally reported that many were planes shot down "all around" his ship. In August 2007, in a release for medical records, the Veteran reported that he had received PTSD treatment since 1973. In the December 2007 statement in support of his PTSD claim, the Veteran reported that he was involved in "Operation Mine Sweep" from May to July 1973. During this time he, in part, experienced rocket attacks and mines going off in the water. Regarding this operation, he noted that two helicopters were lost. The Veteran additionally reported the stressor that he was shot in Olongapo, Philippines. He reported that he was on street after midnight curfew during martial law and was shot at, and grazed, by Filipino MPs. He claimed that the MPs denied this incident. He was taken to his ship and "grounded" for 90 days without pay, as he was on the street after midnight during martial law. In a September 2008 letter from the State Office of Mental Health, it was noted that the Veteran had not been seen by that office since May 2000. The last time he was seen his diagnosis at that time was listed as "No Diagnosis." His last treatments, as of this letter, were in June, September, and October 1999 at Sullivan Correctional facility. There he was given a diagnosis of anxiety disorder not otherwise specified. He was also seen by this facility from April to May 1996 where he was diagnosed with adjustment disorder. In a January 2008 statement, the Veteran reported that Operation Mine Sweep lasted from March to May 1973. He was involved in close combat and firing on enemy hostiles during this mission. He reported that an Air Force pilot was picked up and that a Navy pilot was shot down before the "we got there." He claimed that there were "some things about that mission including that day that might not be in the records." In the May 2009 notice of disagreement, the Veteran claimed that his PTSD was associated with herbicidal agent exposure and service. In an August 2010 state correctional medical record, the Veteran was reported to have "significant problems" which included mental illness, alcohol use, substance abuse, and "severe headache anxiety." It was noted that he had no Axis I or II diagnosis or conditions. The next month, the Veteran's significant problems were noted as substance abuse, anger, and anxiety. In state correctional medical records from February 2011, The Veteran's significant problems were noted as alcohol and substance abuse, and anxiety. He was noted as very frequently appearing sad and nervous. In a July 2012 statement, the Veteran reported that he was young and scared when he was deployed to North Vietnam. He did not know if he would be "blown out of the water." He experienced a nervous breakdown, anxiety attacks, could not sleep, and had problems with authority. He was given medication by the U.S.S. Vancouver's ship doctor. While in Vietnam he began to drink and take illicit substances. He experienced invasive memories of service, and the fear that it caused him, since returning to the United States. His experiences prevented him from keeping friends, holding a job, and he became reclusive. He related his current incarceration to his Vietnam service. In the June 2013 Board decision and remand, the Veteran's stressor of fear of death during mine sweeping operations was found to be verified. In the December 2009 VA Form 9, the Veteran argued that his treatment by VA was a "prima facia" showing of service connection. He reported that he was involved in top secret Naval missions and combat while in Vietnam. In a July 2013 statement, the Veteran advised that he did report to prison sick call in prison each time he had anxiety. This was because it took many hours to be seen, and his treatment was "dismissive." He reported that there was a four week waiting list to be seen by a doctor. He gave up on treatment due to low tolerance and that he "sometimes [had] problems" with authority. He did not complain about his anxiety because the medication provided for same caused drowsiness. He stayed away from medications because he did not know when he "might have to fight with another inmate." In the September 2016 VA PTSD examination, the Veteran reported that he was deployed on the U.S.S. Vancouver from May 1973 to August 1973. His ship assisted in the removal of mines in the waterways of North Vietnam in Haiphong Harbor. He reported that his ship served as a fueling station for the aircraft that engaged in Operation Mine Sweep. He noted that U.S. aircraft were responsible for detonating mines planted by the United States. Although the North Vietnamese were monitoring their actions, his ship was never engaged in combat with them. He was unable to adjust to military life. He had multiple disciplinary actions taken against him in service, until he was eventually recommended for discharge. He has been incarcerated since 1994. The Veteran reported a history of anxiety attacks and depression, but reported that his mood has been stable in recent years. At the time of the examination, the Veteran indicated that he was eligible for parole in 2027, and was very motivated to be released from prison. Upon review of the record, the examiner noted that the Veteran had been assessed and diagnosed with a number of psychiatric diagnoses including: alcohol dependence, anxiety disorder not otherwise specified, and antisocial personality disorder. Upon consideration of the examination results and a review of the record, the examiner found that the Veteran did not meet DSM-IV criteria for PTSD. The examiner found that the events the Veteran reported experiencing aboard the USS Vancouver did not qualify as a PTSD stressor. Further, the Veteran did not endorse symptoms of PTSD, and his record was negative for a diagnosis of same. The Veteran was also not found to display signs of mania or psychosis. He was diagnosed with antisocial personality disorder at the examination, and was not found to be diagnosed with more than one mental disorder. This was based on concurrent VA evaluation, and a review of the record. The examiner noted that since the age of 15 the Veteran exhibited a pattern of behavior marked by "disregard for the law, deceitfulness, impulsivity, aggressiveness, reckless disregard for others, and rationalizing of the mistreatment of others." His antisocial personality disorder was found to be directly related to his in-service diagnosis of sociopathic personality disorder. It was less likely than not that this condition was subject to or aggravated by any injury sustained during his time in service. He opined that since his discharge in 1973, the Veteran's antisocial personality had progressed as expected. B. Analysis Upon consideration of the foregoing, the preponderance of the evidence is against a finding that the Veteran has a psychiatric disability that is associated with service. The Board has considered the positive and negative evidence of record, and finds that the weight of the evidence does not support that there is a nexus between a service-connectable psychiatric diagnosis and service. Even assuming, arguendo, that the Veteran has had a ratable psychiatric disability at any time during this appeal, the preponderance of the evidence is against a finding that such is related to service. The Board acknowledges that the Veteran was diagnosed with a sociopathic personality disorder in service; however, the competent and credible medical evidence does not show that this condition was aggravated by a superimposed injury in service that resulted in additional disability. Regarding his claim for PTSD, the preponderance of the evidence is against a finding that the Veteran has a diagnosis of same. The Board finds the opinion of the 2016 examiner to be highly probative. See Brammer, 3 Vet. App. at 225. The competent and credible evidence is also against a finding that the Veteran has a current psychiatric disorder that is related to service. Further, the record is silent of any post-service medical provider relating a current diagnosis of any psychiatric disorder to his active duty service. As such, the Board finds that the September 2016 examiner's findings and opinions are competent and credible medical evidence. They were rendered upon an examination of the Veteran and a review of the record that was performed in substantial compliance with the Board's June 2013 remand directives. As such, the Board finds that the September 2016 VA examination is probative, persuasive, and dispositive in this claim. Thus, no matter what the Veteran's current psychiatric disorder or disorders may be, the Board finds that the evidence fails to demonstrate that any current psychiatric disorder the Veteran has is related to his active military service, was aggravated beyond its natural course of progression during a period of service, or was incurred during any period of active duty. Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case (whether the Veteran has PTSD or other psychiatric disability and whether such is related to service) fall outside of the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Given the complexity of the medical question at issue in this matter, the Veteran has not been shown to have the necessary education, training, or experience, are not competent to opine as to the diagnosis and etiology of PTSD or any other psychiatric disabilities. Notably, PTSD, or other psychiatric disorders, is not a condition capable of lay diagnosis, nor is it the type of condition that can be causally related to military service without medical expertise (in the absence of continuity since service). See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). The etiology of PTSD, or any other psychiatric disability, is a matter of medical complexity, and, therefore, the Veteran's statements of the above as to the diagnosis and etiology of his PTSD, and or any other psychiatric disability, do not constitute probative evidence in the matter. Thus, to the extent that any lay statements (or any medical evidence based on his lay statements) assert that the Veteran has PTSD, or other psychiatric disability related to service, they are not competent evidence in support of his claim. Further, the Board notes that the Veteran has a recorded history of drug and alcohol use. To the extent that he seeks to service-connection for either, 38 U.S.C.A. §§ 105(a) and 1110 state that compensation is precluded on a direct basis when the "disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs." The evidence does not suggest that his alcohol, and polysubstance abuse can somehow otherwise be service-connected (i.e., on a secondary basis). Consequently, service connection for alcohol and/or polysubstance abuse is not warranted. As to the diagnosis of any personality disorder, to include antisocial personality disorder, the Board notes that such disability is, of itself, not a compensable disability. As congenital or developmental defects, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation, service connection for such disability is not warranted. See 38 C.F.R. § 3.303(c). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a psychiatric disability, to include PTSD; therefore, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §3.102. The appeal must be denied. III. Respiratory Disorder A. Factual Background In a July 1973 medical evaluation, the Veteran's in-service medical history was summarized. He was evaluated by a psychiatrist at the time of enlistment for recurring headaches, and no etiology was found at that time. His Sick Call attendance was noted to be exemplified by various aches and pains that were not been found to have an organic basis. When he was confronted with acts of wrong doing, he attempted to evade punishment either by drug usage (glue sniffing), or by developing somatic complaints that, at the time of the evaluation, were not found to have an organic etiology. His acts of wanton disobedience were noted as purely impulsive and totally without the regard of other people. The psychiatrist opined that he should be classified as having a sociopathic personality disorder. In a March 1995 state correctional medical record, the Veteran complained that his head would fill up with fluid. At night he had a constant drip that would make him choke. In a December 1995 prison physical, the Veteran had a normal throat and neck. In March 1996 state correctional medical record, he complained of a stuffy nose. In a September 1997 state correctional medical record, he reported that his sinuses would hurt on nice days. In a June 1999 state correctional medical record, the Veteran complained that his throat would close. He had difficulty swallowing and complained of a snapping noise in his neck. The next month, his throat was noted as normal. In August 1999, the Veteran complained of having difficulty swallowing and post nasal drip that had lasted for a year. In another record from this month, the Veteran's throat was found to be normal. He was assessed with having symptoms of a possible psychogenic nature. In an October 1999 letter from a VA clinician, according to VA records the Veteran served as a fire fighter on several vessels in service. The clinician noted that "[i]t has been our experience that fire fighters have increased rates of upper respiratory dysfunctions." In state correctional medical records from October 1999, the Veteran complained of a chronic sore throat and that his breathing worsened due to his throat closing up. X-rays showed no radiographic findings that suggested acute or chronic sinusitis. He was noted to have an anxiety/panic disorder with a strong somatization of upper respiratory infections. In a June 2001 state correctional medical record, the Veteran complained of nasal congestion and non-productive cough. In prison physicals from December 2001 and October 2005, the Veteran's nose and neck were normal. A June 2006 X-ray showed that the Veteran's lungs were clear and he had no plural effusions. His pulmonary vascularity was within normal limits. In a January 207 prison physical, his nose and throat were normal. In his August 2007 claim, the Veteran reported that he was assigned to the U.S.S. Vancouver and participated in Operation Mine Sweep in Hai Phong Harbor. He was a boiler technician on a Light PD 11. He reported he had an upper respiratory breathing disorder related to herbicidal agents and "shooting and intense military action." He additionally reported asbestos exposure. In a December 2007 statement in support of his PTSD claim, the Veteran alluded that he had a difficulty swallowing and breathing since service. In a May 2009 notice of disagreement, the Veteran reported that his respiratory disorder was associated with herbicide agent exposure and service. In the December 2009 VA Form 9, the Veteran argued that his treatment by VA was a "prima facia" showing of service connection. He reported that he was involved in top secret Naval missions and combat in Vietnam. In a June 2011 state X-ray, the Veteran's lungs, mediastinum, and chest wall were unremarkable. In February 2012 state X-ray, there was no evidence of acute pulmonary disease. In the June 2013 Board decision and remand, the Veteran was found to be presumptively exposed to herbicide agents as a "brown water" sailor. In a July 2013 state correctional medical record, the Veteran reported that he had occasional shortness of breath and nasal congestion related to his service. August 2013 and May 2014 state imaging studies showed a normal chest without infiltrate, pleural effusion, or pneumothorax. In the September 2016 VA examination, upon examination and review of the medical record, the examiner found that the Veteran did not currently have, nor had never had, a diagnosed respiratory condition. At the examination, the Veteran denied any respiratory disease or condition. His correctional facility medical reports showed no diagnosis of a respiratory condition. He reported that over the years, at times especially at night, he had episodes of shortness of breath, and hyperventilation from anxiety and being alone in his cell. He sometimes breathed into a bag and used to take psychiatric medications. It was noted that a May 2014 X-ray showed a normal chest, and that X-rays from 2006, 2011, and 2012 were also unremarkable. B. Analysis Upon consideration of the foregoing, the Board finds that service connection for a respiratory disability is not warranted, as the preponderance of the evidence is against a finding that the Veteran has a current respiratory disability, or that he had one during the pendency of this claim. The September 2016 examiner found that the Veteran did not have any current diagnosed respiratory disability. The Board finds that this examination is adequate for purposes of adjudicating the Veteran's claim. The opinion included an examination of the Veteran, and took into account a review of his record and medical history. It offered a historically accurate explanation of rationale that cited to factual data. As such, the Board finds that this examination is competent, credible, persuasive, and dispositive as to the Veteran's claim for service connection for a respiratory disability. As the most probative evidence is against the finding that the Veteran has a current disability, service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that the Veteran intended to claim that he has a respiratory condition that is secondary to an acquired psychiatric disability, this claim must fail. While the evidence does demonstrate that the Veteran experienced somatization of respiratory symptoms, as discussed above, the Veteran does not have a service-connected psychiatric disorder. As such, service connection for a respiratory condition as secondary to a psychiatric condition is not for consideration. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). While the Veteran is competent to describe any breathing difficulties he experienced in service and since, any contentions by the Veteran that he has a respiratory disability related to active service are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, there is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a respiratory disability; therefore, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §3.102. The appeal must be denied. IV. Headaches, to Include Migraines A. Factual Background In a July 1973 medical evaluation, the Veteran's in-service medical history was summarized. He was evaluated by a psychiatrist at the time of enlistment for recurring headaches, and no etiology was found at that time. His Sick Call attendance was exemplified by various aches and pains that were not been found to have an organic basis. When he was confronted with acts of wrong doing, he attempted to evade punishment either by drug usage (glue sniffing), or by developing somatic complaints that, at the time of the evaluation, were not found to have an organic etiology. His acts of wanton disobedience were noted as purely impulsive and totally without the regard of other people. The psychiatrist opined that the Veteran should be classified as having a sociopathic personality disorder. In a February 1993 VA medical record, the Veteran complained of headaches. In a September 1993 VA medical record, the Veteran complained of headaches since he was 18 years old. His headaches were often associated with projectile vomiting, and occurred at least once a week. He experienced three to five headaches a day. In a December 1995 prison physical, the Veteran complained of headaches. That month he additionally complained of chronic headaches. In a February 1996 state correctional medical record, the Veteran complained that he had a concussion when he was 13, and experienced headaches almost every day. In May 1996, he complained of on and off migraines for the last few weeks. In an October 1996 state correctional medical record, the Veteran complained of headaches that sometimes occurred in front of head, or "all around." He sometimes vomited due to his headaches. In November 1996, the Veteran complained of tension headaches, and was noted by the clinician to have a possible drug seeking personality. In a September 1997 state correctional medical record, the Veteran complained that he had headaches when it rained. In a May 1999 state correctional medical record, he reported that he had migraines since he was 13 years old, and they were now occurring three times a day. In a February 2004 state correctional medical record, he again reported that he experienced headaches since he was 13 years old. In an August 2007 VA release for medical records, the Veteran indicated that he received migraine treatment since 1973. In the May 2009 notice of disagreement, the Veteran alleged that his migraine headaches were associated with herbicide agent exposure and service. In the December 2009 VA Form 9, the Veteran argued that his treatment by VA was a "prima facia" showing of service connection. He reported that he was involved in top secret Naval missions and combat in Vietnam. In an August 2010 state correctional medical record, the Veteran's significant problems were noted to include "severe headache anxiety." In the June 2013 Board decision and remand, the Veteran was found to be presumptively exposed to herbicide agents as a "brown water sailor." In a July 2013 statement, the Veteran reported that he had "a lot of problems" with migraines, and that pain from same would cause vomiting. He did not report to prison sick call for conditions like anxiety and his back as it took many hours to be seen, and he received "dismissive" treatment. It took four weeks to be seen by a doctor, and he gave up on treatment due to "low tolerance" and "sometimes [having] problems with authority." In the September 2016 VA examination, the Veteran was noted to have a chronic headache diagnosis; however, the time of such diagnosis was unknown. The Veteran reported that he started having headaches in 1975, and state correctional records noted that the Veteran had a concussion in 1968. State correctional records noted that the Veteran denied any complications or headaches from that concussion, and had no significant headaches. He denied any significant headaches prior to and during his military service. Medical records noted that the Veteran experienced a concussion playing sports in 1968. However, the Veteran denied any complications or headaches from that concussion and was noted to have "no significant headache." His headaches were mostly mild to moderate. Occasionally, reported as about once in six months, he experienced severe headaches with symptoms of sensitivity to light and noise, nausea, and occasional vomiting when he was exposed to "hot weather, stress etc." In light of the above the examiner found that there was no clear and unmistakable evidence that the Veteran had a pre-existing headache disorder; that the there was no evidence of a significant headache, or progression of same, during service; and it was less likely than not that the Veteran's headache disorder onset or was related to service, to include exposure to herbicide agents. B. Analysis Upon consideration of the foregoing, the Board finds that service connection for a headache disability is not warranted as the preponderance of the evidence is against a finding that the Veteran has a current headache disability that is related to his service. The Board acknowledges that the Veteran has a number of inconsistent statements regarding the onset of his current headache disability. Notably he has stated that his headaches and/or treatment started when he was 13 after a concussion, when he was 18, in service, since 1973, and in 1975. It was also noted in November 1996, in the context of a headache complaint, the Veteran was noted to have a possible drug seeking personality. The Board notes that the Veteran is competent to indicate the onset of his headache symptoms. However, in light of these inconsistent statements, the Board finds that the Veteran's statement's as to when his headaches began lack credibility. See generally Caluza v. Brown, 6 Vet. App. 498 (1995) (in part noting that the Board may consider self interest in determining credibility). For the same reason, service connection is not warranted under the chronic disease presumptive provisions. 38 U.S.C.A. § § 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board finds that service connection is not warranted on the basis that the Veteran's headache disability began in service. A review of the Veteran's available service records indicated that when he was confronted with acts of wrong doing, he attempted to evade punishment, in part, by developing somatic complaints that, when evaluated, were not found to have an organic etiology. At the September 2016 VA examination the Veteran denied any significant headaches during service, and stated that his headaches began after service. The Board finds that the September 2016 examiner's opinion, which was based upon review of the record and evaluation of the Veteran, that there was no evidence of a significant headache, or progression of same, during service is competent, credible, and probative evidence. In considering the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran's headache disorder onset in service. As such, service connection on the basis that a headache disability manifested in service is not warranted. Upon consideration of whether service connection is warranted on the basis of continuity of symptomology, the Board finds that it is not. In coming to this conclusion, the Board has considered the Veteran's prior inconsistent statements and the lack of other evidence of continuity. As such, the preponderance of the evidence is against the finding of service connection on the basis of continuity of symptomology. The preponderance of the evidence is also against a finding that the Veteran has a headache disability that is otherwise related to his service. Notably, the only medical opinion that discusses whether the Veteran's headache disability is related to service is the September 2016 VA examination. There, the examiner opined that that the there was no evidence of a significant headache, or progression of same, during service, and it was less likely than not that the Veteran's headache disorder onset or was related to service, to include exposure to herbicide agents. The Board finds that this examination is adequate for purposes of adjudicating the Veteran's headache claim. It took into account a review of the Veteran's record and medical history, and included questioning regarding his headache symptoms and the onset of same. The opinion that a headache disability was less likely than not incurred in, or progressed beyond its natural course due to, service was based on an examination of the Veteran. The Board acknowledges that the examiner mistakenly stated that the Veteran served from November 1973 to August 1974, instead of January to August 1973. However, the Board finds that this error did not prejudice the Veteran as no favorable findings were made in relation to same. Regardless, upon review of the September 2016 DBQ questions entered into VBMS by the RO the Veteran's dates of service were correct. As such, the examiner had notice, in addition to the DD 214 within the claims file, of the Veteran's dates of service. As such, the Board finds that this error was not material, and was otherwise harmless. Outside of this error, the examiner provided adequate rationale that cited to factual data. As such, the Board finds that this VA examination is competent, credible, and persuasive as to the claim for service connection for headaches. As such, service connection is not warranted on the basis that it related to, or was aggravated beyond its natural progression, due to service. To the extent that the Veteran intended to claim a headache condition as secondary to an acquired psychiatric disability, this claim must fail. While the evidence does demonstrate that the Veteran has headaches, as discussed above, the Veteran does not have a service-connected psychiatric disorder. As such, service-connection for a headache as secondary to a psychiatric condition is not for consideration. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). While the Veteran is competent to describe any headache pain he experienced in service and since, any contentions by the Veteran that he has a headache disability related to active service are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, there is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a headache disability; therefore, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §3.102. The appeal must be denied. V. Low Back A. Factual Background In a July 1973 medical evaluation, the Veteran's in-service medical history was summarized. He was evaluated by a psychiatrist at the time of enlistment for recurring headaches, and no etiology was found at that time. His Sick Call attendance was exemplified by various aches and pains that were not been found to have an organic basis. When he was confronted with acts of wrong doing, he attempted to evade punishment either by drug usage (glue sniffing), or by developing somatic complaints that, at the time of the evaluation, were not found to have an organic etiology. His acts of wanton disobedience were noted as purely impulsive and totally without the regard of other people. The psychiatrist opined that he should be classified as having a sociopathic personality disorder. In a December 1989 VA medical record, X-rays of the Veteran's back were noted as negative. From January to July 1990, the Veteran complained of back pain. In a February 1990 VA medical record, X-ray imaging of the mid and lower thoracic and lumbar spine were noted as normal. In a March 1990 VA medical record, the Veteran complained lower thoracic and upper lumbar spine pain. A bone scan taken at that time showed no evidence of skeletal pathology. In December 1995 and January 1998 prison physicals, the Veteran had a normal spine. In a July 2001 state correctional medical record, the Veteran was diagnosed with an acute lumbar spasm. In a December 2001 prison physical, his spine was found to be normal. In an October 2005 prison physical the Veteran was noted to have a normal spine. A November 2005 X-ray showed mild degenerative joint disease. A January 2007 prison physical again noted that the Veteran's spine was normal. In a February 2007 state correctional medical record, review of an X-ray noted that there was no significant degenerative joint disease, or old trauma. In his August 2007 claim, the Veteran reported that he assigned to U.S.S. Vancouver and participated in Operation Mine Sweep in Hai Phong Harbor. He reported that he was a boiler technician on a light PD 11. He reported that his ship suffered casualty status during a combat mission, was hit, and was also actively involved in combat. In an August 2007 VA release for medical records, the Veteran claimed that he received treatment for backaches since 1973. In his May 2009 notice of disagreement, the Veteran claimed that his low back was associated with herbicide agent exposure and service. In the December 2009 VA Form 9, the Veteran argued that his treatment by VA was a "prima facia" showing of service connection. He reported that he was involved in top secret Naval missions and combat in Vietnam. In a July 2013 statement, the Veteran reported that he did not report to prison sick call for conditions like his back as it took many hours to be seen, and he received "dismissive" treatment. It took four weeks to be seen by a doctor, and he gave up on treatment due to "low tolerance" and "sometimes [having] problems with authority." An October 2010 state correctional medical record noted that there was no spine deformity or swelling. An X-ray from July 2011 showed moderate degenerative joint disease of the spine. In the June 2013 Board decision and remand, the Veteran was found to be presumptively exposed to herbicide agents as a "brown water sailor." In an August 2013 state correctional medical record, X-ray imaging showed moderate degenerative lumbar spondylosis deformans and muscle spasm. Another record from this time noted that an X-ray demonstrated that the Veteran had degenerative disc disease at L3 to L4. He was assessed with a moderate degree of lumbar spondylosis. In another record from this time he was assessed with degenerative joint disease of the lumbosacral spine. In the September 2016 VA examination, the Veteran reported that he began to have lower back pain at some point in 1983. He denied any back injury, and did not note any specific treatment for his back other than using over the counter medication as needed. His reported that his low back pain worsened in the 1990s. At that time he began stretching exercises that were noted to have a good effect. Imaging studies from 2011 and 2013 showed degenerative disease of the lumbar spine. It was noted that aging was a significant risk factor for degenerative changes, and was opined to be the likely cause of the Veteran's low back degenerative changes. As such, the examiner opined that it was less likely than not that the Veteran's back condition had its onset in, or is otherwise related to, service, to include in-service treatment for aches and pains and/or exposure to herbicides. B. Analysis Upon consideration of the foregoing, the Board finds that service connection for a low back disability is not warranted as the preponderance of the evidence is against the finding that the Veteran has a current lumbar spine disability that is related to his service. The Board acknowledges that the Veteran has made a number of inconsistent statements regarding the onset of his current low back disabilities. Notably he has stated that his back symptoms and/or treatment started in 1973, or 1983. The Board notes that the Veteran is competent to indicate the onset of his low back symptoms. However, in light of these inconsistent statements, the Board finds that the Veteran's statement's as to the origins of his low back pain lack credibility. See generally Caluza v. Brown, 6 Vet. App. 498 (1995) (in part noting that the Board may consider self interest in determining credibility). The Board finds that service connection is not warranted on the basis that a low back disability began in service. A review of the Veteran's available service records indicated that when he was confronted with acts of wrong doing, he attempted to evade punishment, in part, by developing somatic complaints that, when evaluated, were not found to have an organic etiology. Most probatively, at the September 2016 VA examination the Veteran stated that his back did not begin to hurt until 1983, that he denied a back injury, and that the first medical record showing lumbar degenerative process via imaging study was in November 2005. Taken together, the Board finds that the weight of the evidence is against the finding that the Veteran's low back disabilities onset in service. As such, service connection on the basis that a low back disability manifested in service is not warranted. In consideration of the fact that imaging studies taken prior to November 2005 do not show a lumbar degenerative process, the Board finds that the chronic disease presumptive provisions of 38 U.S.C.A. § § 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 and the continuity of symptomatology provisions (for arthritis) do not apply. The preponderance of the evidence is also against a finding that the Veteran has a low back disability that is otherwise related to his service. Notably, the only medical opinion that discussed whether the Veteran has a low back disability that is related to service is the September 2016 VA examination. There, the examiner noted that the Veteran denied any back injury, opined that the likely cause of the Veteran's low back degenerative changes was aging, and that his low back disabilities were thus less likely than not related to service and/or herbicide agent exposure. The Board finds that this examination is adequate for purposes of adjudicating the Veteran's low back claim as it took into account review of the Veteran's record and medical history. The opinion was based on an examination of the Veteran, to include questioning regarding his symptoms and the onset of his back-related symptoms. The Board acknowledges that the examiner mistakenly stated that the Veteran served from November 1973 to August 1974. However, the Board finds that this error did not prejudice the Veteran as no favorable findings were made in relation to same. Regardless, upon review of the September 2016 DBQ questions entered into VBMS by the RO the Veteran's dates of service were correct. As such, the examiner had notice, in addition to the DD 214 within the claims file, of the Veteran's dates of service. As such, the Board finds that this error was not material, and was otherwise harmless. Outside of this error, the examiner provided adequate rationale that cited to factual data. As such, the Board finds that this VA examination is competent, credible, and persuasive as to the claim for service connection for low back disability. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). While the Veteran is competent to describe any back pain he experienced in service and since, any contentions by the Veteran that he has a low back disability related to active service are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, there is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability; to include degenerative joint disease and degenerative disc disease, therefore, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §3.102. The appeal must be denied. ORDER Service connection for an acquired psychiatric disability, to include PTSD, is denied. Service connection for a respiratory disability is denied. Service connection for a headache disability is denied. Service connection for a low back disability is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs