Citation Nr: 18140698 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-14 724 DATE: ORDER Entitlement to service connection for lumbosacral strain with degenerative arthritis, status post lumbar surgery, is denied. Entitlement to service connection for depression, to include as secondary to lumbosacral strain with degenerative arthritis, is denied. FINDINGS OF FACT 1. Symptoms of arthritis of the lumbar spine were not chronic in service and continuous since service separation. 2. Arthritis in the lumbar spine did not manifest to a compensable degree within one year of service separation. 3. Currently diagnosed lumbosacral strain with degenerative arthritis was not incurred in or caused by active duty service. 4. Currently diagnosed depression was caused by lumbosacral strain with degenerative arthritis and was not caused by or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbosacral strain with degenerative arthritis, status post lumbar surgery, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for depression, to include as secondary to lumbosacral strain with degenerative arthritis, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Air Force from October 1972 to October 1976. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon (RO), which denied service connection for a lumbosacral strain with degenerative arthritis, status post lumbar surgery, and denied service connection for depression. In November 2015, the Veteran participated in a Decision Review Officer (DRO) informal conference. A copy of the conference report has been associated with the record. The Board notes that within the Veteran’s claims file, VA treatment records had been associated with the record after the February 2016 statement of the case and prior to the April 2016 transfer of the Veteran’s case to the Board. Upon review of this medical evidence, the Board finds it duplicative of the evidence considered in the February 2016 statement of the case and no further action is necessary. Service Connection Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2017). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may be also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310(b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2017). When a veteran seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Evidence of Record Service treatment records include a June 1976 separation examination, in which the Veteran had a normal spine and psychiatric clinical evaluation. Notes within the June 1976 separation examination show the Veteran had recurrent back pain referring to mechanical low back pain, which was treated with exercises and heat treatments. In the June 1976 report of medical history, the Veteran reported a history of arthritis and recurrent back pain. The Board notes that the RO requested for clinical records and active duty inpatient clinical records relating to back injury from January 1973 to December 1973 at the George Air Force Base Hospital, California. The RO received a negative response, indicating that the allegation had been investigated and no records were found. Private treatment records from June 2011 show the Veteran had complaints of pain radiating into his left leg, and the physician ordered an MRI of the lumbar spine. A June 2011 MRI showed lumbar spinal stenosis, disc herniation, degenerative spondylolisthesis and other degenerative changes. An August 2011 note shows that the Veteran had received an injection that improved his back pain, but reported symptoms of aching central low back pain, which was worse with walking and activity. The private physician decided to proceed with lumbar decompression and discectomy surgery in September 2011. In October 2011, the Veteran reported marked improvement of his back pain, and the physician opined that he was recovering well status post discectomy and hemilaminotomy seven weeks prior. An October 2011 MRI showed disc degeneration and trace spondylolisthesis. In an April 2014 VA thoracolumbar spine examination, the Veteran was diagnosed with lumbosacral strain with degenerative arthritis of the spine, status post lumbar surgery in 2011. The Veteran reported a motorcycle incident in service that was not treated, and that lower back pain and some lower extremity numbness were finally treated in 2011 by lumbar spine disc surgery. Upon physical examination of the Veteran and review of his claims file, the VA examiner opined that the Veteran’s current lumbar spine disabilities were less likely than not incurred in or caused by service. The VA examiner reasoned that while the Veteran complained of back problems in service, there was no objective evidence to show that this became a chronic condition originating from service. The examiner indicated that it was not possible to determine the specific origin or causation related to this claim without resorting to mere speculation, given the marginal orthopedic entries found in service treatment records, the amount of elapsed time, repetitive use that causes wear and tear of the musculoskeletal system, natural aging of the musculoskeletal system and any undocumented injuries after service. In an April 2014 VA psychological examination, the VA psychologist diagnosed the Veteran with major depressive disorder, recurrent, severe without psychotic symptoms. During his interview, the Veteran reported having injured his back on a work-site in 2005, which worsened his back pain that he experienced since service. The VA psychologist, after carefully reviewing the Veteran’s claims file, medical literature, psychometric data, and in interviewing the Veteran, opined that it was at least as likely as not that the Veteran’s major depressive disorder is due to or a progression of his chronic back pain. The VA psychologist noted that the Veteran had a satisfactory adjustment prior to entering military service to the extent that there were no signs of obvious psychiatric symptoms apparent from his description or from medical records review. The Veteran denied having any mental problems until his back pain became chronic and severe. In a November 2015 DRO informal conference report, the Veteran indicated that he injured his back in a dirt bike accident in the desert while stationed at George Air Force Base, California, sometime between April 1973 and December 1973. He reported that his bike hit a gully and he was thrown from the bike, landing on his back. He indicated he was seen at an emergency room after the accident and that his service discharge physical documents recurring mechanical back pain. The Veteran also stated that he had sprained his back in 2005 and was diagnosed with a herniated disc in 2011. He believed that his back was weakened by his in-service injury, making him more susceptible to the post-service injury. A medical article, titled “Depression and Chronic Back Pain”, was associated with the record in March 2016, which indicates that depression is more commonly seen in patients with chronic back pain problems than in patients with pain that is of an acute, short-term nature. Chronic back pain can lead to a diminished ability to engage in a variety of activities, which is believed to lead to a downward physical and emotion spiral that allows the individual with chronic back pain to feel more loss of control of his or her life, leading to major depression. In a February 2016 letter, a private chiropractor opined that the type of accident the Veteran had when he was 18 possibly could and probably did cause the spinal problems he is experiencing now today. In a March 2016 correspondence, the Veteran indicated that when he had his motorcycle accident in service, he was going 40-50 miles per hour, riding in a gully. When he came out of the gully, his back tire hit the edge of the gully, flipping the bike rear over front, and slammed him to the ground in the seated position. He called this “impact trauma” to the spine. The Veteran was treated at sick bay for the incident and reported chronic back pain, which he believed was directly related to the trauma. He indicated that his current back diagnoses can all be traced back to his original injury. 1. Entitlement to service connection for lumbosacral strain with degenerative arthritis, status post lumbar surgery The Veteran has currently diagnosed lumbosacral strain with degenerative arthritis of the spine, status post lumbar spine surgery. See April 2014 VA thoracolumbar spine examination. Symptoms of arthritis in the lumbar spine were not chronic in service and continuous after service separation. Service treatment records show that while the Veteran was treated for mechanical back pain in service, which was treated exercises and heat treatments, with complaints of recurrent back pain on a report of medical history on separation, he had a normal clinical evaluation of his spine within a June 1976 separation examination. Despite complaints of low back pain shown in service, symptoms were not shown to be chronic in service and continuous since service separation as the record does not show that the Veteran had lumbar spine complaints until 2005, decades after service separation. Within a November 2015 DRO informal conference report, the Veteran indicated that he had sprained his back in 2005 and was diagnosed with a herniated disc in 2011. Additionally, the April 2014 VA examiner opined that while the Veteran complained of back problems in service, there was no objective evidence to show that this became a chronic condition originating from service. For these reasons, the weight of the evidence shows that symptoms of lumbar spine arthritis were not both chronic in service and continuous since service separation. Arthritis in the lumbar spine did not manifest to a compensable degree within one year of service separation. Private treatment records include a June 2011 MRI, which showed lumbar spinal stenosis, disc herniation, degenerative spondylolisthesis and other degenerative changes. The Board finds that this MRI report is the earliest radiographic evidence of arthritis in the lumbar spine shown by the record. For these reasons, the Board finds that arthritis of the lumbar spine did not manifest within one year after service separation. The Board finds that the weight of the evidence does not show that currently diagnosed lumbar spine disabilities were incurred in or caused by active service. An April 2014 VA examiner opined that the Veteran’s current lumbar spine disabilities were less likely than not incurred in or caused by service. The VA examiner reasoned that while the Veteran complained of back problems in service, there was no objective evidence to show that this became a chronic condition originating from service. The examiner indicated that it was not possible to determine the specific origin or causation related to this claim without resorting to mere speculation, given the marginal orthopedic entries found in service treatment records, the amount of elapsed time, repetitive use that causes wear and tear of the musculoskeletal system, natural aging of the musculoskeletal system and any undocumented injuries after service. The Board finds that the VA opinion of record is probative because it is based on fully accurate factual background with regard to the Veteran’s history of injury in service, his post-service treatment, and examination of the Veteran. Additionally, the Board finds that the rational provided for the opinions is adequate. While a February 2016 private opinion states that of accident the Veteran had when he was 18 possibly could and probably did cause the spinal problems he is experiencing now today, the Board finds this opinion to have limited probative value as it is ambiguous, does not indicate a review of the Veteran’s record, or provide reasoning for the opinion. Conversely, the April 2014 VA opinion considered the probative because it is based on fully accurate factual background with regard to the Veteran’s history of injury in service, his post-service treatment, and examination of the Veteran. The Board finds that the April 2014 VA medical opinion included adequate rationale based on a fully accurate background with consideration of the facts specific to this Veteran’s case, whereas the February 2016 private opinion is largely equivocal with no rationale provided. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board has accorded more probative weight to the VA medical opinion. Insomuch as the Veteran has asserted that his lumbar spine disability is related to a traumatic injury in service, absent chronic symptomatology in the lumbar spine, the Board finds that his lay assertions with regard to causation are outweighed by medical opinion evidence provided by a physician on this issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For the above reasons, the Board finds that the weight of the evidence is against the finding of service connection for lumbosacral strain with degenerative arthritis. Because the preponderance of the evidence is against the claim, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). 2. Entitlement to service connection for depression, to include as secondary to lumbosacral strain with degenerative arthritis The Veteran contends that currently diagnosed depression is related to his diagnosed lumbosacral strain with degenerative arthritis. The Veteran has currently diagnosed major depressive disorder, recurrent, severe without psychotic symptoms. See April 2014 VA psychiatric examination. The Board finds that diagnosed major depressive disorder is not etiologically related to a service-connected disability. While the April 2014 VA psychologist opined that that it was at least as likely as not that the Veteran’s major depressive disorder is due to or a progression of his chronic back pain, the Board has determined that his lumbar spine disabilities are not service-connected within this decision. As such, the Board finds that entitlement to service-connection for depression as secondary to a service-connected disability must be denied. (Continued on the next page)   Additionally, the weight of the evidence does not show that currently diagnosed major depressive disorder was incurred in or caused by service. Service treatment records do not show complaints, treatment or diagnosis of a psychiatric disability. Rather, the Veteran, within an April 2014 VA examination, denied having any mental problems until his back pain became chronic and severe. The record contains no other competent evidence suggesting any link between the Veteran’s current diagnosis of major depressive disorder and military service, and the Veteran has not alleged that this condition has existed since military service. Accordingly, the Board finds that the weight of the evidence is against the finding of service connection for depression, to include as secondary to a service-connected disability. Because the preponderance of the evidence is against the claim, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel