Citation Nr: 1802454 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-03 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include bipolar disorder. 2. Entitlement to an initial compensable rating for a compression fracture at L1-L2 (claimed as a low back condition). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel INTRODUCTION The Veteran had a period of active duty for training from March 1976 to July 1976 and served on active duty from July 1978 to June 1979, with additional periods of active duty for training and inactive duty for training from August 1982 to August 1983 while a member of the Army National Guard. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2015, the Veteran did not attend a scheduled video-conference hearing before the Board. The Board considered the hearing request withdrawn. In September 2016, the Board remanded the claims to obtain outstanding treatment records, to obtain a copy of any Social Security Administration (SSA) decision and supporting medical records, and to afford the Veteran a VA examination with regard to his psychiatric disorder. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The record evidence shows that the Veteran's acquired psychiatric disability, to include bipolar disorder is not related to active service or any incident of service. 2. The Veteran's back disability has not been manifested by forward flexion of the thoracolumbar spine greater than 60 degrees, but no greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include bipolar disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2017). 2. The criteria for an initial compensable rating for a compression fracture at L1-L2 have not been met. 38 U.S.C. §§ 1155 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2017). Here, VA provided adequate notice to the Veteran in letters dated in April 2010 and April 2013. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the Veteran in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and private treatment records are associated with the claims file as are records associated with his claim for disability benefits from the Social Security Administration (SSA). VA provided relevant examinations as discussed in detail further in the decision. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Service Connection The Veteran served as a Cavalry Scout and Motor Transport Operator while in service. The Veteran contends that a bipolar disorder was incurred in or was caused by active service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted for certain chronic disabilities if they are shown to have manifested to a compensable degree within one year after the Veteran was separated from service or through a showing of "continuity of symptomatology" since service. 38 U.S.C. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Psychosis is among those diseases for which this presumption and continuity of symptoms are available, but not bipolar disorder. 38 C.F.R. §§ 3.309, 3.384 (2017). The scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Lay evidence is competent when a condition can be identified by a layperson. See 38 C.F.R. §§ 3.159(a)(1) and (2) (defining competent medical and lay evidence) and 3.307(b) (as to chronicity and continuity of symptoms lay evidence should describe material and relevant facts observed and not merely conclusions based upon opinion). Lay evidence may, in some circumstances, establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009); see also King v. Shinseki, 700 F.3d 1399 (Fed.Cir., 2012). The credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence, but this is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir., 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Applicable Facts and Analysis Acquired Psychiatric Disorder The Veteran's service personnel records indicate that he received informal counseling beginning in October 1978 until his discharge in June 1979 for failing to maintain acceptable standards for retention. Medical findings at the time of service entry showed no mental problems. Also, the May 1979 separation examination and the results of the Mental Health examination noted that there had been no change in the Veteran's mental condition. His behavior was indicated to be normal; his memory was good; and he was shown to be fully alert and fully oriented. In a January 1994 hospital summary report, the examiner assessed bipolar disorder, in remission with medication. At the time of discharge, the Veteran was described as being alert and oriented and was in no acute distress other than mild anxiety as a result of contemplating his mother's terminal illness. There was no apparent suicidal or homicidal ideation, paranoid ideation, or psychosis. In June 1995, the Veteran was formally diagnosed with bipolar disorder. In a March 1996 Medical Certificate report, triage notes reveal that the Veteran needed his psychiatric medication refilled after he heard that his brother had been killed in a motor cycle accident. The report reveals that the Veteran did not feel depressed and had no suicidal ideation. In April 1996, an additional Medical Certificate report reveals that the Veteran sought medication refills. The Veteran reported that he was diagnosed with bipolar disorder at a VAMC. A May 1995 Consultation Sheet reveals that the Veteran had a history of bipolar disorder II. At the time of examination, the Veteran sought psychiatric medication refills which he stated that he lost. In June 1995, the Veteran was diagnosed with bipolar disorder with a history of alcohol dependence noted. In February 1995, the Veteran was diagnosed with Bipolar II, Anxiety NOS, and Alcohol dependence in remission. An April 1996 examination letter reveals that the Veteran had a history of bipolar disorder and presented to the physician to request a refill of prescription medication. In March 1999, the Veteran filed an Application for Compensation or Pension. Within the application, the Veteran noted that he was making the claim due to a liver condition and bipolar disorder. The Veteran did not indicate that bipolar disorder occurred during active or inactive duty for training; however, the Veteran did indicate that the liver condition had occurred during such time. In a May 2001 psychological evaluation, the Veteran was diagnosed with depressive disorder NOS; alcohol dependence, sustained full remission; and borderline personality disorder. His GAF score was noted to be 55. In connection with VA treatment from May 2003 to September 2003, the Veteran was noted to have a history of bipolar disorder and substance abuse. A July 2003 VA inpatient treatment record indicated that the Veteran was diagnosed with bipolar disorder in 1995. In a psychiatric note dated February 2010, the examiner described the Veteran as being tearful when he talked about childhood sexual abuse. At the time of examination, the Veteran reported that he was diagnosed with bipolar disorder in 1998. He also reported mania episodes in which he spent excessive amounts of money with the last episode occurring in 2008 or 2009. The Veteran reported that medication had aided with the mood swings, but that he still had difficulty sleeping. The Veteran denied hallucinations, delusions, paranoia, and other perceptual disturbances. The examiner assessed bipolar disorder type I, alcohol, sober for last five years. The Veteran's Global Assessment Functioning Score (GAF) was 50. Additionally, in a February 2010 addendum report, the examiner reviewed the Veteran's charts and observed that he was getting private narcotics at the same time that he was receiving them from the examiner's facility. The examiner noted that the Veteran was not a good candidate for chronic narcotics, given his history, and determined that the Veteran was sincere in previously admitting that he had a problem with narcotics, but that he appeared to be backtracking. No medication was prescribed. In an October 2010 Notice of Disagreement, the Veteran stated that he was appealing the claim because he had been taking medication for bipolar disorder for about twenty years. Additional VA outpatient treatment reports showed that the Veteran continued to be treated for bipolar disorder. Specifically, the Veteran was treated in May 2010 and April 2011. However, the reports did not indicate a medical nexus to service. In an April 2011 VA treatment record, the Veteran reported bipolar disorder for more than 16 years to include a history of drinking copious amounts of alcohol since the age of 18. The Veteran further reported childhood abuse by his stepfather and a history of smoking cigarettes since age 14. He noted that he received Social Security Administration (SSA) disability benefits for his back and bipolar disorder since 1996 and that he was treated by private mental health providers. The VA treatment provider reported no participation in combat or mistreatment in service. The VA treatment provider found the Veteran had a complicated situation with narcotic and alcohol abuse, bipolar disorder, and posttraumatic stress disorder (PTSD) based on a childhood history of abuse. In a February 2012 Notice of Disagreement, the Veteran stated that his bipolar condition was caused by military service. In the September 2016 remand, the Board ordered that the Veteran be afforded a VA examination with regard to his psychiatric disorder. Specifically, the Board requested that the examiner identify all psychiatric disorders that the Veteran has had since service; provide a medical opinion as to whether it was at least as likely as not that any identified psychiatric disorder was caused by active service; and discuss the information in the service personnel records documenting the circumstances in 1978-1979 that led to the Veteran's separation from the military for poor military bearing and undependability. As directed by the Board's September 2016 remand, The Veteran was afforded a VA examination in October 2016. The examiner opined that it was less likely than not that the Veteran's mental condition was related to his active military service. The examiner stated that substance induced mood disorder results from the physiological effects of substances on the brain chemistry and is not caused by military service. The examiner also stated that the Veteran's diagnosis of substance induced mood disorder began after military service, noting that records were not found for a disorder in any VA records prior to 2003. The examiner further noted that the Veteran denied any manic symptoms in the last seven years and that the Veteran's report of significant depression or manic symptoms was in the context of the abuse of alcohol, drugs, and prescription medications. In regards to the Veteran's diagnosed other specified trauma and stressor related disorder, the examiner also opined that it was less likely than not related to the Veteran's military service. The examiner stated that the disorder, instead, was related to his childhood sexual abuse and was not caused by, incurred in, or permanently aggravated by his military service. The examiner noted that the Veteran did not meet full DSM-IV or DSM-V criteria for posttraumatic stress disorder (PTSD). The examiner again noted that the Veteran reported intrusive thoughts and nightmares related to his childhood physical and sexual abuse. The Board finds that service connection on a direct basis for an acquired psychiatric disorder is not warranted. In making such a finding, the Board accords great probative weight to the October 2016 VA examiner's opinion. In this regard, the October 2016 VA examiner found that the Veteran's psychiatric disorders stemmed from his childhood and abuse of alcohol and drug use. In reaching his conclusion, the October 2016 VA examiner considered the Veteran's lay and clinical history, to include service and post-service records and examination results, as well as on specialized clinical experience and knowledge. Accordingly, this evidence is considered both competent and highly probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Therefore, Board finds no adequate basis to reject this competent medical opinion based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). In addition, the Veteran has not provided any competent medical evidence or credible lay reports to rebut this opinion or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board has also considered the Veteran's assertions that his psychiatric disorder is related to service. The Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. In this case, however, the causes of the Veteran's acquired psychiatric disorder, to include bipolar disorder involves a complex medical etiological question, requiring specific, specialized, medical knowledge and training that the Veteran is not shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Thus, the probative evidence does not show the Veteran's acquired psychiatric disorder to be etiologically or causally related to his military service. More specifically, after careful consideration of the record, to include both lay and medical evidence, the Board finds that the preponderance of the probative evidence weighs against the Veteran's service connection claim for a psychiatric disorder, to include bipolar disorder. For the foregoing reasons, the Board finds that service connection for an acquired psychiatric disorder, to include bipolar disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Compression Fracture The Veteran contends that his service-connected compression fracture of the spine at L1-L2 has increased in severity and as such warrants the granting of an initial compensable disability rating. By way of background, in a September 2010 rating decision, service connection was granted for an L1-L2 compression fracture, because it had been established as directly related to military service. Service treatment records dated in May 1976 note a follow-up of back pain, which was reported as worsening. Post-service treatment records, dated in April 2003, showed mild spondylosis of the lumbar spine with slightly narrowed disk space at L1-L2. No fracture, subluxation, or bony metastases was observed. The Veteran was afforded a VA examination in April 2010. The Veteran reported that he fell during basic training and was given a temporary medical profile for a back strain that was aggravated by carrying heavy loads in active service. The Veteran indicated that this low back pain recurred about one year after separation from service, a 2003 fall was notable for fractures at L1-L2, and that he currently had radiating pain down the left leg. The examiner noted a medical history of changes in disc protrusions at L1-L2, L2-L3, L3-L4, L4-L5, L5-S1, and T12-L1 in 2007 and 2010. Upon examination, the examiner found evidence of decreased motion, stiffness, weakness, spasms, and pain to the low back to left leg, with normal gait, lumbar flattening, lumbar lordosis, guarding, and positive straight left raise on the left. The examiner measured active range of motion of 48 degrees forward flexion, 16 degrees extension, 23 degrees right lateral flexion, 22 degrees left lateral flexion, and 25 degrees bilateral rotation, with no additional limitation of motion due to pain or upon repetition. The examiner also diagnosed vertebral body fractures at L1 and L2 that resulted in 10 percent loss of height, herniated nucleus pulposus (at T12-L1, L1-L2, L2-L3, L3-L4, L4-L5, and L5-S1), facet arthropathy, and chronic low back pain. The examiner concluded that the current compression fracture at L1-L2 was at least as likely as not caused by the in-service back injury. The examiner opined that 50 percent of the Veteran's current disability was caused by herniated nucleus pulposus but that herniated nucleus pulposus was not related to the in-service back injury because there was documented evidence that the condition developed after 2003. The examiner further opined that 20 percent of facet arthopathy and spondylosis of the lumbosacral spine was due to the in-service back injury and 80 percent was caused by non-service connected causes of the current back disability, to include the 2003 fall, obesity, and the natural progression of the disease. Based on objective findings of mild wedging at L2, and limited range of motion, a 0 percent evaluation was assigned from April 2010, the date that the claim for benefits was received. In a September 2010 VA addendum opinion, the examiner concluded that the Veteran's herniated nucleus pulposus caused the Veteran's limited motion of the spine. The examiner did not provide a rationale in support of the opinion. An October 2010 private treatment record indicated that the Veteran had degenerative disc disease of the lumbar spine. A June 2014 VA examination report diagnosed degenerative joint disease, intervertebral disc syndrome (IVDS), left-sided disc herniation at L4-L5, and mechanical low back pain syndrome. The examiner reported findings of back symptoms and associated radiculopathy. The examiner noted that the Veteran was service-connected for a mechanical low back strain with osteoarthritis, probable sacroilitis, and spondylosis of the lumbar spine and opined that the current scientific literature did not support a finding that the in-service back injury resulted in a current back disability. The examiner concluded that it was less likely than not that the Veteran's current back pain was related to his service-connected back injury since the medical literature did not support a finding that the Veteran's in-service back injury was relate to his current low back disorder. The examiner explained that the etiology of the Veteran's back pain was likely multifactorial because the pain that was more intense than what was normally expected for the disability and was more likely than not attributable to non-anatomic psychiatric disabilities and alcohol use. In September 2016, the Board remanded for another VA spinal examination that included range of motion testing to determine the extent of limitation of motion due to pain on active motion and passive motion, and with weight-bearing and without weight bearing. The Board also requested that the examiner provide an opinion as to whether it was at least as likely as not that the previously diagnosed conditions were related to the service-connected compression fracture at L1-L2. In doing so, the examiner was to attempt to reconcile the opinion with other pertinent evidence of record to include the April 2010 and June 2014 VA examination reports. As directed by the Board's September 2016 remand, the Veteran was afforded a VA examination in October 2016. The examiner reviewed the entire claims file. At the outset, the examiner noted that the Veteran specifically denied fracturing his back in service, but rather stated that the compression fracture occurred as a result of a fall on ice after discharge. Upon examination, the Veteran reported pain on weight bearing in active motion and passive motion, as well as on non weight bearing in active and passive motion. The Veteran reported experiencing daily flare-ups, secondary to activities of daily living; the examiner noted that it was not scientifically possible to determine the additional degrees of ROM loss as the Veteran was not experiencing a flare-up during the examination. The examiner measured the following ranges of motion: 20 degrees forward flexion, 10 degrees extension, 10 degrees right lateral flexion, 12 degrees left lateral flexion, 30 degrees right lateral rotation, and 20 degrees left lateral rotation, with no additional limitation of motion due to pain or upon repetition. No muscle spasms were reported, but the Veteran had guarding resulting in abnormal gait or abnormal spinal contour. No ankylosis was reported. Though the examination showed pain with abnormal range of motion (ROM), the examiner opined that the Veteran's current low back symptoms of pain and abnormal ROM were not due to his service-connected condition. Instead, the examiner stated that the Veteran's compression fracture at L1-L2 occurred greater than one year after discharge, and the records do not support the earlier conclusion that twenty percent of facet arthropathy and spondylosis of the lumbosacral spine were due to his service-connected condition. The examiner also noted that there was documentation of a back injury in July 1976 from a motor vehicle accident and a documentation of a back injury in an April 1976 STR, but no indication of a lumbar compression fracture. The examiner further noted that there was no evidence to support the contention that 50 percent of the current disability was caused by nonservice-connected herniated nucleus pulposus. By way of rationale, the examiner noted that there were no physical signs or imaging studies to support the contention of non service connected herniated nucleus pulposus available at the time of the examination. The examiner further noted that the Veteran's contentions of increased pain and loss of ROM were credible. However, the examiner stated that the probable etiology of the intensity of pain and disability was normally expected with the current diagnosis. The examiner continued by stating that the significant increase in intensity of pain from the anticipated level may suggest that it may be more likely than not attributable to non anatomic causes which can increase a patient's perception to pain and loss function. The examiner additionally noted that the current chief complaints of increased pain and loss of function were more likely than not the result of confounding factors, defined as those factors which may intensify perceptions of physical musculoskeletal pain (i.e., PTSD, bipolar disorder, depression, anxiety, physical/sexual abuse), but from various etiologies unrelated to the service related physical injury. A higher evaluation of 10 percent is not warranted unless there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. Based on the ROM noted at the October 2016 examination, the Board finds that entitlement to an initial compensable rating for compression fracture at L1-L2 remains denied and a non-compensable evaluation for the low back condition is continued. In making such a finding, the Board accords great probative weight to the October 2016 VA examiner's opinion. In this regard, the October 2016 VA examiner found Veteran's current low back symptoms of pain and abnormal ROM were not due to his service-connected condition. In reaching his conclusion, the October 2016 VA examiner considered the Veteran's lay and clinical history, to include service and post-service records and examination results, as well as on specialized clinical experience and knowledge. Accordingly, this evidence is considered both competent and highly probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Therefore, Board finds no adequate basis to reject this competent medical opinion based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). In addition, the Veteran has not provided any other competent medical evidence to rebut this opinion or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Although the Veteran provided credible lay evidence as to the worsening of his symptoms, he is not competent to render an opinion as to the degree to which his back pain had worsened. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Instead, this determination involves a complex medical etiological question, requiring specific, specialized, medical knowledge and training that the Veteran is not shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a psychiatric disorder, to include bipolar disorder is denied. Entitlement to an initial compensable rating for a compression fracture at L1-L2 is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs