Citation Nr: 18140441 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 05-02 186 DATE: October 4, 2018 ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a neck disorder is denied. Entitlement to service connection, to include on a secondary basis, for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The Veteran’s low back disorder was not incurred in or aggravated by active service. 2. The Veteran’s neck disorder was not incurred in or aggravated by active service. 3. The Veteran’s acquired psychiatric disorder was not incurred in active service or caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to October 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2002 and August 2003 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction over the case now resides with the Honolulu, Hawaii RO. In May 2009, the Veteran testified at a travel Board hearing before a Veterans Law Judge who is no longer employed by the Board. The Veteran was offered a replacement hearing before another Veterans Law Judge in June 2012, which he accepted. In September 2012, the Veteran testified at a travel Board hearing before the undersigned. Both the May 2009 and September 2012 hearing transcripts are of record. The Board previously remanded these claims in August 2010, July 2012, January 2013, and November 2017 for additional development. Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. The record reflects that VA’s duty to notify was satisfied in various correspondences. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records identified by the Veteran, including service treatment records (STRs), post-service treatment records, and VA examination reports. Neither the Veteran nor his representative has identified any deficiency in VA’s notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also notes that actions requested in the prior remand have been undertaken. In this regard, additional treatment records were obtained, a VA examination, and a separate VA addendum medical opinion were obtained. The VA examination and addendum opinion were rendered by examiners after reviewing the Veteran’s records. Neither the Veteran nor his representative has raised any deficiencies in the VA examination or addendum opinion. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis. In this instance, the evidence must demonstrate an etiological relationship between a service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Low back disorder and neck disorder The Veteran asserts that his current neck and back disabilities were incurred in service. Specifically, the Veteran indicated that on one occasion, he experienced a whiplash effect to his neck and back from a safety harness that caught him when he fell out of a helicopter, and on several other occasions, experienced hard landings in helicopters in which he was thrown against the bulkheads. The Veteran’s STRs note that in November 1967, he reported severe pain in the lumbar spinal region. In March 1968, the Veteran reported experiencing backaches. His STRs indicate reports of muscle spasms in the nuchal region in September and October 1966. The Veteran’s entrance and separation examinations indicate normal neck and back evaluations. The Veteran received diagnoses of degenerative disc disease of the lumbar and cervical spine in April 1997. A review of the Veteran’s records indicates that he reported experiencing neck and back pain beginning around the middle of the 1980’s to the early part of the 1990’s and that this pain was due to non-service related injuries. For example, a June 1996 medical treatment record indicates the Veteran reported constant neck pain and back pain for ten years, and a May 1997 VA treatment record notes that the Veteran had cervical radiculopathy from a surfing accident. In addition, Social Security Administration (SSA) records indicate that the Veteran’s neck and back pain began between 1988 and 1991, and his lumbar and cervical problems were the result of a the Veteran engaging in a 40 foot dive in 1984. A lay statement by the Veteran’s former wife indicates that the Veteran reported sustaining injuries in helicopter related incidents in service, and a lay statement from a friend of the Veteran indicated that he learned of the Veteran’s back problems in 1988, and the Veteran reported his back condition began in service. During his May 2009 and September 2012 hearings, the Veteran indicated that he did not seek treatment for his neck or back injuries in service because the person in charge did not want any negative documentation associated with his leadership. The Veteran reported that he saw a medic in service but there was no documentation of these visits. During his May 2009 hearing, the Veteran indicated that he sought treatment from a private physician for the first six to ten years following his service. During his September 2012 hearing, he reported that he first sought treatment for his neck and back pain in the late 1970’s to the early 1980’s. The Veteran has also submitted multiple opinions from his VA and private treatment providers which, based on the Veteran’s report of his in-service events and injuries, indicate that his neck and back disabilities may be related to his service. One physician, a doctor of medicine (MD), who had treated the Veteran since 1999, provided two separate opinions. The first, dated March 2003, indicated that the Veteran’s condition may very well be secondary to the Veteran’s military trauma; the second opinion, dated April 2004, indicated that the Veteran’s existing medical condition is related to the events that occurred during his military service. A doctor of osteopathic medicine, who also provided two separate opinions, indicated in March 2009 that the Veteran claimed his neck and back disabilities began in service and have continued. An opinion was provided indicating that the Veteran’s existing medical condition is probably related to his military tour. In a December 2012 statement, the same provider opined that there was a likelihood that the Veteran’s cervical and lumbar disabilities could have been related to his military service. Another MD provided a positive nexus opinion in August 2006, indicating that it was at least as likely as not that his radiculopathy and back problems were due to his military service but that it was impossible to know what caused the Veteran’s back problems. Additionally, the Veteran submitted two statements from a clinical psychiatric pharmacist addressing his neck and back pain. In October 2003, the opinion indicated that it was possible that the Veteran’s pain could be related to events that he experienced during his military service. The second statement, dated March 2004, noted that the Veteran suffered pain primarily from back and incurred during his military service. The Veteran was afforded a VA examination in March 2017, which confirmed that the Veteran had a cervical spine disorder and a lumbar spine disorder, but indicated that his neck and back disabilities were less likely than not incurred in or caused by the claimed in service injury, event, or illness, or his reported trauma to his neck and back associated with helicopter hard landings as well as a fall out of a helicopter in flight. After thorough consideration of the Veteran’s record, the examiner reasoned that the record does not indicate any injuries or occurrences related to service. The examiner noted that there was a complaint for muscle spasms in service, but there were no reports of on-going or additional neck complaints. The examiner indicated that many factors could cause a muscle spasm. The examiner also considered that the first evaluation of the Veteran’s neck pain post-service was in 1996, which noted that the Veteran had a history of surfing. Additionally, the examiner found that while the Veteran reported back pain in service, the report was consistent with a muscle injury and noted that the first post-service record of an evaluation for back pain was in 1995. The examiner indicated that the Veteran’s separation examinations indicated normal neck and back clinical evaluations. Finally, the examiner noted, while recognizing the Veteran’s concern of reporting injuries that might jeopardize his commander’s chance for a promotion, the Veteran sought multiple medical evaluations in service for other complaints, but he failed to seek evaluations for neck or back pain. In a May 2018 VA examination, the examiner indicated diagnoses of lumbar spine degenerative disc disease with facet arthropathy and lumbar stenosis, and cervical spine degenerative disc disease with cervical stenosis. The examiner opined that the Veteran’s neck and back disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that these were degenerative changes and consistent with aging. Moreover, there were no diagnoses in the Veteran’s STRs, and his entrance and separation examinations reported normal clinical evaluations of the neck and back. The examiner noted that STRs indicated two occasions in which the Veteran complained of headaches in service but found that it was not consistent with a chronic neck condition. Similarly, the examiner noted a record in the Veteran’s STRs in which the Veteran reported back pain. However, the examiner indicated that this was consistent with acute and transitory muscular pain that would be expected to heal and resolve with rest and was not consistent with a chronic back condition. Additionally, the examiner also determined that the Veteran’s claimed disabilities were less likely than not proximately due to or the result of his service-connected disability for tension headaches, indicating that headaches have no impact on the cervical spine or lumbar spine and therefore does not have the capacity to cause his neck or back disabilities. The Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for his neck and back disabilities. The evidence generated at the time of the Veteran’s period of service is highly probative. Although the Veteran asserts that he was unable to seek treatment in service for any injuries related to the described helicopter incidents, the Veteran’s separation examination indicates a normal neck and spine evaluation and does not note any neck or back pain or other problems. The Board acknowledges that the Veteran reported that his neck and back problems have continued since service and testified that he sought treatment post-service from a private provider. However, despite the absence of these private treatment records, a review of the available records supports a finding that the Veteran began receiving treatment for his neck and back condition in the mid to late 1980’s, and post-service medical treatment records and SSA records indicate that the Veteran’s neck and back problems are due to non-service related injuries which occurred years after his separation from service. The weight of the evidence shows that there were no chronic symptoms of neck or back disabilities during service or since service until about the mid 1980’s or early 1990’s. The more probative evidence does not indicate the Veteran complained of neck or back pain until at least a decade after service. This period of time without complaints or treatment, while not dispositive, is a factor that weighs against the finding that the neck and back disabilities have existed since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board has also considered the positive nexus opinions from his physicians and providers; however, while each opinion indicates that the Veteran’s current back and neck disorders may be related to his reported helicopter accidents, none of these opinions offers any supporting rationale. In contrast, the VA examinations, which determined that his neck and back disabilities were less likely than not incurred in or caused by the claimed in service injury, considered the Veteran’s claims file and medical history, reported trauma in service, post-service recreational activities, reported symptoms, and provided rationales for the opinions. Thus, the Board finds the VA medical opinions to be the more probative evidence of record. In light of the above, the Board finds that the weight of the evidence is against a finding that the Veteran’s neck and back disabilities are related to his active service, and the claims for service connection for neck and back disabilities are therefore denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Acquired psychiatric disorder The Veteran’s STRs, entrance examination, and separation examination are silent as to any symptoms, treatment, or diagnosis of an acquired psychiatric disorder in service. The Veteran’s post-service medical treatment records indicate that the Veteran’s symptoms included depressed mood, diminished interest in most activities, insomnia, fatigue, feelings of worthlessness, and a diminished ability to think or concentrate. The Veteran received a diagnosis of major depressive disorder in May 1996. During his May 2009 hearing, the Veteran indicated that his depression began 20 years prior, as a result of his neuropathy, back, spine, and neck pain. A January 2011 VA examination provided a diagnosis of chronic major depression. After a review of the Veteran’s lay statements and medical records, the examiner opined that the Veteran’s psychiatric disorder was less likely than not caused by or the result of an in-service injury or disease. The examiner reasoned that, based on the Veteran’s post-service medical records, the Veteran began seeking psychiatric treatment at least 20 years after his discharge from the service, and VA treatment records indicated that the his depression was related to unemployment and other financial stressors. The examination also notes that the Veteran’s chronic depression appears to stem from more recent problems, including deteriorating physical health as he is aging, including back pain. Additionally, the Veteran submitted a statement from his treating clinical psychiatric pharmacist indicating that the Veteran began his mental health care treatment in 1989. The provider noted diagnoses of recurrent major depressive disorder and generalized anxiety disorder, and indicated that the Veteran’s symptoms included depressed and anxious moods, excessive worry, periodic suicidal ideation, feelings of hopelessness and worthlessness, insomnia, poor energy, poor concentration, psychomotor agitation, muscle tension, anhedonia, and inability to relax. The statement indicated that the Veteran’s symptoms were aggravated by concomitant medical conditions, particularly chronic pain. The provider explained that the basis of the Veteran’s pain stems primarily from back and neck injuries. The evidence does not show, nor did the Veteran assert, that his depression began in service. Specifically, the Veteran contends that his depression was secondary to his chronic pain due to his medical conditions, which he believed were the result of his active duty service. A review of the Veteran’s record indicates that the Veteran reported that his symptoms of depression began around 1985, approximately the same time as he began receiving treatment for his neck and back pain. The January 2011 VA examination, statement from the Veteran’s mental health treatment provider, and the Veteran’s own hearing testimony indicate that the Veteran’s psychiatric disorder is due primarily to his neck and back pain. As noted above, service connection may only be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury or if a non-service connected disability is aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b). The Veteran is not service-connected for his neck or back disabilities, the disabilities for which the Veteran claims caused his psychiatric disorder. As such, service connection for the Veteran’s depression is not warranted on a direct or secondary basis. (Continued on the next page)   In light of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s acquired psychiatric disorder is related to active service or is caused or aggravated by a service-connected disability. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim for service connection an acquired psychiatric disability on a direct and secondary basis is denied. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel