Citation Nr: 18155830 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 13-19 703 DATE: December 6, 2018 ORDER Entitlement to service connection for a lumbar spine disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, and depression, is remanded. Entitlement to service connection for residuals of Bell’s palsy, to include as secondary to an acquired psychiatric disability, is remanded. FINDING OF FACT The most probative evidence of record does not show that it is at least as likely as not that the Veteran’s current lumbar spine disability was incurred in or caused by service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1976 to October 1976. These matters come to the Board on appeal from a March 2010 rating decision that denied service connection for disc bulges of the lumbar spine and Bell’s palsy, and a December 2011 rating decision that denied service connection for depression and for PTSD. The Veteran cancelled a videoconference hearing that was scheduled for March 2016. These matters were previously before the Board in November 2016, when they were remanded for further development. 1. Entitlement to service connection for a lumbar spine disability is denied. Generally, service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). To establish service connection for a disability on a direct-incurrence basis, the Veteran must show: (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). The medical evidence of record shows diagnoses of degenerative arthritis of the lumbar spine. See July 2018 examination and imaging report. As such, Shedden element (1), the existence of a present disability, has been met. As to Shedden element (2), in-service incurrence or aggravation of a disease or injury, the Veteran contends that he was physically assaulted by a drill instructor during training exercises; and hurt his back and sustained injuries when the drill instructor jumped down onto the Veteran’s back with his knee, and the Veteran’s back has hurt since then and has worsened with time. Service treatment records do not contain any complaint of back injury or pain, and the record does not show other evidence of an assault occurring. The record shows that the Veteran has indicated his back pain began in either 2000 after a work injury involving lifting boxes, or in 2003 during a car repair. The record supports a lumbar pathology in 2005 imaging reports. However, all of these instances are many years after service. As to Shedden element (3), a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the Veteran attended a VA examination in July 2018 to determine the nature and etiology of his claimed condition. There, the examiner opined that his back disability was less likely than not incurred in or caused by service. The examiner considered the Veteran’s reported history, and noted that the Veteran stated that he was given an honorable discharge because he was married. The examiner noted the Veteran did not have treatment until 2000, over 20 years after service. The examiner further noted that service treatment records did not show evidence of a back condition, and indicated that his prior career as an auto mechanic required a lot of bending and stooping. The Board affords great probative weight to the July 2018 opinion. To the extent the Veteran contends that his back disability is related to his complaints in service, the Board notes that while the Veteran is competent to attest to observable symptoms, he has not been shown to possess the medical expertise to be deemed competent to associate his in-service symptoms to his current disability. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Board notes that the examiner reviewed the medical evidence of record and applied his medical expertise in offering the opinion. As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s current back disability is at least as likely as not related to service. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt provision is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and depression is remanded. The Veteran attended a VA examination in July 2018 to determine the nature and etiology of his claimed psychiatric disability. There, the examiner determined that the Veteran did not currently meet the diagnostic criteria for a mental disorder at this time. The examiner noted that the Veteran had prior diagnoses of anxiety and depression, but that he did not meet the threshold of a disorder at present. The examiner noted that the Veteran was not taking medications for anxiety or depression. The Board finds the opinion inadequate for decision making purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the Veteran has a diagnosis of anxiety and depression in 2007, has positive depression screens in 2014, and continued his mental health treatment in 2016. A January 2014 record indicated the Veteran did not like medication side effects and preferred marijuana. May 2013 VA treatment records show medication taken for anxiety. The Board also notes that the July 2018 examiner only addressed the Veteran’s condition at present. The Board emphasizes that the Veteran filed a claim for benefits in December 2010. The examiner’s opinion does not address whether any acquired psychiatric disability during the pendency of the appeal is related to service. As such, an addendum opinion is needed on remand. 2. Entitlement to service connection for residuals of Bell’s palsy, to include as secondary to an acquired psychiatric disability, is remanded. A 2007 private hospitalization for dysarthria and stuttering ended with discharge diagnoses of Bell’s Palsy and anxiety and depression. The record notes that it is felt the dysarthria and stuttering were psychogenic in nature. The Board notes that the Veteran also alleged that his Bell’s Palsy was due to his anxiety and depression in a March 2011 statement. While a July 2018 VA examiner lists some possible causes of Bell’s Palsy, the opinion indicates the ultimate cause is unknown. The examiner did not address the possible secondary nature of the Veteran’s condition with regard to mental health, and only indicated that the record did not show evidence of assault. As such, adjudication of the matter must be deferred pending development of the issue of entitlement to service connection for a psychiatric disability. The matters are REMANDED for the following action: 1. Forward the record and a copy of this Remand to the examiner who completed the July 2018 psychiatric opinion, or, if that examiner is unavailable, to another qualified examiner for completion of an addendum opinion. The examiner must review the record and consider all lay statements. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any psychiatric disability demonstrated proximate to or during the pendency of the appeal was incurred in or caused by service. A complete rationale should accompany any conclusion reached. In rendering the requested rationale, the examiner must reference the diagnoses of anxiety and depression in 2007, May 2013 VA treatment records which show medication taken for anxiety, and continued mental health treatment in 2016. 2. If the record contains a positive nexus between the Veteran’s mental health disability and service, the RO should obtain an addendum opinion from the July 2018 Bell’s Palsy examiner as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s Bell’s Palsy is proximately due to, or aggravated by, his mental health disability. Aggravation is defined as the permanent worsening beyond the natural progression of the disease. A complete rationale must accompany any conclusion reached. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Baker, Associate Counsel