Citation Nr: 18142527 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 10-03 048 DATE: October 16, 2018 ORDER Service connection for a back disability is denied. REMANDED Entitlement to an initial increased rating for persistent depressive disorder with anxious distress, currently rated 30 percent disabling, is remanded. FINDING OF FACT The weight of the evidence is against a finding that a chronic back disability manifested in service or is otherwise due to 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(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1989 to April 1993. He asserts that he has a back disability due to an in-service injury. Specifically, he claims to have injured his back in 1992 while squatting down painting. As he stood, the boat rocked and he hit his back on a door dog. He denied seeking treatment. 07/11/2008 VA 21-4138 Statement in Support of Claim. As will be discussed in more detail below, the circumstances of the claimed injury appear consistent with the Veteran’s service and his report is deemed credible by the Board. The question for the Board is whether the Veteran has a back disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has diagnoses of moderate functional thoracolumbar degenerative disc disease and chronic low back pain with L5-S1 disc protrusion (diagnosed in May and July 2007), the preponderance of the evidence weighs against finding that the Veteran’s current lumbar spine disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records do not reflect any complaints or treatment for a back injury or condition. A March 1993 Report of Medical Examination conducted for separation purposes reflects that the Veteran’s ‘spine, other musculoskeletal’ was clinically evaluated as normal. 07/16/2008 STR-Medical at 35. On a March 1993 Report of Medical History, the Veteran checked the ‘No’ box for ‘recurrent back pain.’ Id. at 38. At a July 2010 VA examination, the Veteran reported that his back problems began when he hit it against a steel bolt while on board a ship. He did not go to sick call or seek treatment. 07/10/2010 VA Examination at 1-2. The examiner diagnosed moderate functional thoracolumbar degenerative disc disease without clinical radiculopathy or radiographic impingement. In September 2011, the Veteran testified that during service he was inside painting a fan room during his mess cooking period and the ship was underway and was rocking a bit. He squatted down inside the fan room painting and directly behind him was a water-tight door that had dogs and big bolts with a big nut. He stood up, the ship rocked and it slammed the dog right in the middle of his back. 09/02/2011 Hearing Testimony at 3. In March 2012, the Veteran underwent a VA examination. The examiner diagnosed lumbar degenerative disc disease with chronic strain and no clinical radiculopathy. The examiner provided a negative etiological opinion with regard to the back, stating that service treatment records are completely silent regarding back problems and on that basis concluded that it was less likely than not his back disability is related to service. 03/08/2012 VA Examination. As the VA examiner did not appear to consider the Veteran’s lay contentions of an in-service back injury of being struck by a door bolt, the January 2013 Board Remanded for additional opinion. 01/07/2013 Remand BVA or CAVC at 5. In May 2013, a VA examiner provided an opinion regarding functional impairment/limitations related to the back, but did not provide an addendum etiological opinion. 06/18/2013 Medical Treatment Record-Government Facility at 5. In July 2014, a VA examiner noted that service treatment records were reviewed and stated that there is no mention of back problems in service treatment records. There was no mention, exam, x-rays or history of treatment or follow-up care for an impact injury to the back. There was not even the usual incomplete, brief, hard to read progress note of any back problems. Entrance and exit physicals do not mention back problems. The examiner stated his understanding that the CP process requires objective evidence that is medically and traditionally defined as the following: focal ortho history of the specific chief complaint; focal and detailed ortho directed physical exam including active and passive ROM; focal and acceptable working diagnosis; orthopaedic treatment including an x-ray if needed, consults, rx and follow-up care. The examiner stated that if the Veteran wishes to pursue this issue, above listed information must be produced, not a facsimile or a collaborating compassionate subjective witness, but medically acceptable objective evidence as listed above. 07/25/2014 VA Examination. An August 2014 VA examiner opined that the current back condition is less likely than not incurred in or caused by an in-service injury, event or illness. The examiner stated that it is less likely than not the Veteran’s accident of being struck in the back by a door bolt caused chronic strain, bulging discs, degenerative disc disease. In so finding, it was noted that his exit examination showed no complaint or diagnosis of chronic back pain or problem. Additionally, his service treatment records are silent for treatment of acute or chronic back pain/condition. Per a May 2007 progress note, approximately two years prior he woke up one day and felt like he slept wrong and began noticing back pain. It got progressively worse. An MRI scan showed some bulging discs in his low back. Per the VA examiner, this indicated that the Veteran’s back pain began many years after service (2005 per medical records) and does not clinically correlate as due to or a result of service. The examiner further stated that degenerative disc disease or bulging discs is observed in over half of all adults over 45 years of age and considered typical changes of aging and not associated with a focal blunt low force trauma with no sequelae (in this case, as evidenced by the negative exit exam in service treatment records). Herniated disc or herniated nucleus pulposus is a condition where the soft central part of the spinal discs protrude out from the stiff outer layer. If this herniation presses a nerve or the spinal cord this causes radiculopathy or spinal stenosis. There is no evidence of this in the Veteran in the past or present. Chronic low back strain is the most common medical complaint in general medical practice. The Veteran’s complaints are found to have started in 2005 based on available medical evidence that does not clinically correlate with the Veteran’s claim. 08/05/2014 VA Examination. As the VA examiner’s assertion that the Veteran did not have a herniated disc appeared to be contradictory with a January 2009 VA treatment record that showed that the Veteran was diagnosed with a right lateral herniated disc, in December 2014, a VHA etiological opinion was requested. In March 2018, a VA Chief Neurosurgeon reviewed the claims folder wherein the examiner acknowledged the Veteran’s report of in-service injury. The examiner stated that the first radiographic record identified in the file was an MRI lumbar spine in May 2005. The examiner personally reviewed this study and stated that there is clear evidence of degenerative disc disease, most significantly at L5-S1 and to a lesser extent at L4-5. The adjacent bone findings indicate that these are chronic in nature. There is a small disc protrusion associated with this degeneration, but it is also chronic and this determination is based on the general laxity of the annulus fibrosus without herniation of nuclear tissue. This reflects a natural occurrence of the degenerative process, when the disc deteriorates, it loses volume internally and this volume loss is seen as a decrease in height. As the height of the disc decreases, the annulus or circular retaining wall of the disc space buckles outward resulting in a “bulge” or protrusion. These and significantly more common in the degenerative process of aging and are rarely due to trauma. If they were traumatic in nature, they would have been associated with very significant injury at the time of the occurrence, which this was not. The injury as described was not associated with significant energy transfer to the lower lumbar area and would not be responsible for the L5-S1 disc disease documented 13 years later. It was noted that there was a substantial difference in technique between the 2007 and 2009 lumbar MRIs and it is not possible to determine if this is a new finding or technically superior imaging. Nevertheless, a minor trauma 17 years earlier would not likely be a causative in the development of a small disc protrusion at the site of a degenerated lumbar disc. Since there is a difference in the techniques, the examiner was not able to reconcile the difference between the May 2014 statement and earlier statements in the record concerning the low back pathology. It was concluded that a herniated lumbar disc diagnosed in 2009 would not within a reasonable degree of medical probability be due to a minor trauma dating back to 1992. As detailed above, while the Veteran asserts that he has a chronic back disability due to an in-service injury, the evidence establishes that a chronic back disability was not diagnosed until many years after separation from service. While the Veteran is competent to report an in-service injury and while the Board finds such reports to be credible, despite service treatment records being negative for any such injury and complaints, the evidence does not establish that a chronic disability manifested in or is due to service. As discussed above, the March 2018 VA examiner provided a negative opinion regarding whether his current back disability is related to the reported in-service injury. Even while acknowledging that the injury occurred, the examiner opined that a minor trauma 17 years earlier would not likely be a causative in the development of a small disc protrusion at the site of a degenerated lumbar disc. The opinion of the March 2018 VA examiner is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no contrary opinion of record. While the Veteran believes that his back disability is due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Veteran’s statements of opinion do not constitute probative evidence on the matter of etiology. The weight of the evidence is therefore against the claim. REASONS FOR REMAND The April 2016 rating decision references a May 19, 2016 Mental Disorders VA contract examination. Such examination is not of record and must be associated with the claims folder. On Remand, the Veteran should be afforded a VA examination to assess the current severity of his acquired psychiatric disorder. Associate updated VA treatment records for the period from April 17, 2008. The matter is REMANDED for the following actions: 1. Associate with the virtual folder the May 19, 2016 Mental Disorders VA contract examination. Associate with the virtual folder updated VA treatment records for the period from April 17, 2008. 2. AFTER outstanding VA treatment records have been associated with the claims folder, schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected persistent depressive disorder with anxious distress. The examiner should review the Virtual folder and note such review in the examination report or addendum to the report. (Continued on the next page)   The examiner should be asked to comment on the severity of the Veteran’s disability, and specify the degree of occupational or social impairment due to his service-connected persistent depressive disorder with anxious distress. Examination findings should be reported to allow for evaluation of his disability under 38 C.F.R. § 4.130, Diagnostic Code 9433, and the examiner should specifically comment on any difficulty establishing and maintaining effective work and social relationships due to his depressive disorder. The examiner should also describe the functional effects of the Veteran’s persistent depressive disorder with anxious distress, to include how such effects would impact his functioning in an employment capacity. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel