Citation Nr: 18140709 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 17-62 249 DATE: October 5, 2018 ORDER Service connection for a back disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for drug and alcohol abuse is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT A back disability did not manifest in service; arthritis of the back did not manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 1989 to June 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Entitlement to service connection for a back disability. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection on the basis of continuity of symptomatology can be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a), which includes arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is seeking service connection for a back disability. Post-service VA and private treatment records contain findings of chronic low back pain, degenerative disc disease, lumbago, nerve root compression, and herniated disc. With regard to the question of presumptive service connection, the Board finds that lumbar spine arthritis did not manifest to a compensable degree within the one-year presumptive period. A compensable (10 percent) degree of arthritis requires establishment of arthritis by X-ray findings and limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. 4.71a, Diagnostic Code 5003. The record does not show X-ray evidence of lumbar spine arthritis within one year of the Veteran’s separation from service. As such, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307 (a)(3). The remaining question is whether service connection on a direct basis is warranted. The August 1989 service enlistment examination and the April 1991 service separation examination contain normal clinical evaluations of the spine. The Veteran denied having, or having ever had, recurrent back pain on the accompanying medical history reports. He also denied recurrent back pain during a December 1989 medical screening for overseas assignment. VA treatment records indicate that the Veteran injured his back in a post-service work-related incident in the mid to early 2000’s. Those records attribute back pain to that incident. As that incident did not occur during service, it cannot form the basis for a grant of service connection. Nor does the record indicate that the Veteran has endured continuous back pain since service. Indeed, as noted above, he denied any history of recurrent back pain at the time of his service separation examination. The probative evidence suggests an initial onset of back pain nearly 15 years after his separation from service. The Veteran contends his low back disability is due to his military service. In this case, the question of causation is not the type of immediately observable cause-and-effect relationship contemplated by Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is not competent to address the etiology of his back disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Thus, the lay evidence is insufficient to establish a nexus between the Veteran’s disability and his military service. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability is remanded. The psychiatric issue on appeal has been expanded given the nature of the Veteran’s claim and the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). At the outset, the Board notes that no psychiatric condition was noted on the Veteran’s service entrance examination. To the contrary, his August 1989 entrance examination reflects a “normal” psychiatric examination. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service except as to defects noted at the time of the examination, acceptance, and enrollment or where there is clear and unmistakable evidence that the disease or injury existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111. Given that a psychiatric disability was not noted at entry, the Veteran is presumed sound. In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury existed prior to service and was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Service treatment records show that the Veteran attempted suicide during service in 1990. He gave a history of severe depression, as well as alcohol abuse and a suicidal gesture, prior to entering the Navy. Psychiatric evaluations revealed diagnoses of “rule out history of low-moderate dysthymia” and adjustment disorder with depressed/sad mood. The Veteran received medical treatment for intoxication on several occasions and was administratively discharged from service after alcohol treatment failure. The record contains two nexus opinions, but neither is adequate for rating purposes. In August 2016, a private provider reviewed the claims file and provided a DSM-5 diagnosis of unspecified depressive disorder. She opined that this condition “more likely than not began in military service.” Although the Veteran’s pre-service suicide attempt and self-reported history of depression prior to service are noted in the summary of evidence reviewed, the doctor did not address that evidence in her opinion. In October 2017, a VA examiner diagnosed bipolar disorder, current depressed episode. He opined that there was clear and unmistakable evidence of a mental health condition (depression) prior to service, and that the Veteran experienced an occasional waxing and waning of symptoms during service. He further opined that the Veteran’s current mental health condition (bipolar disorder) was a different entity from the depression that he experienced prior to and during service. The examiner concluded that the Veteran’s pre-existing mental health disorder was not permanently aggravated during service. However, the examiner did not consider the August 2016 private opinion or the diagnoses of depressive disorder and posttraumatic stress disorder (PTSD) (childhood trauma) contained in the VA treatment records. Medical opinions have no probative value when they are based on an incomplete or inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 548 (1993). Another opinion must be obtained. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for drug and alcohol abuse is remanded. The Veteran contends that he is entitled to service connection for alcohol and drug abuse, to include as secondary to an acquired psychiatric disability. Given that the Veteran’s claim for service connection for alcohol and drug abuse is inextricably intertwined with his remanded claim for an acquired psychiatric disability, the drug and alcohol abuse claim must also remanded. 3. Entitlement to a TDIU is remanded. Because a decision on the remanded psychiatric issue could significantly impact a decision on the TDIU issue, the issues are inextricably intertwined. A remand of the claim for a TDIU is also required. These matters are REMANDED for the following action: 1. Obtain an opinion as to the etiology of any currently diagnosed psychiatric disability. The examiner should review all relevant service treatment records, post-service medical records, the August 2016 private opinion, the October 2017 VA opinion, and the Veteran’s father’s July 2014 lay statement. A complete rationale should be provided for all opinions. If another examination is deemed necessary, one must be provided. First, the examiner must identify all psychiatric disabilities that have been present during the appeal period (since April 2012) or within close proximity thereto (even if it has since resolved). For each identified disability, the examiner should provide an opinion as to the following questions: (a) Is it clear and unmistakable (undebatable) that the disability preexisted the Veteran’s active duty service (August 1989 to June 1991)? (b) If the answer to question (a) is yes, is it also clear and unmistakable (undebatable) that the disorder did NOT undergo an increase in severity beyond the natural progress of the condition during service? (c) If the answer to questions (a) and/or (b) is no, is it at least as likely as not (50 percent or more probable) that the disorder first manifested during, or is otherwise related to, the period of active duty? 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the claims remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.N. Poulson, Counsel