Citation Nr: 18156702 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 11-06 735 DATE: December 11, 2018 ORDER Service connection for a low back disability is denied. Service connection for residuals of neck trauma is denied. Service connection for a right ankle disability is denied. Service connection for a right eye disability is denied. Service connection for an acquired psychiatric disability is denied. FINDING OF FACT The most probative evidence of record weighs against a conclusion that the Veteran has a low back, neck, right ankle, right eye, or acquired psychiatric disability that was incurred in service; arthritis of the low back or neck is not shown within one year of service. CONCLUSION OF LAW The criteria for service connection for a low back, neck, right ankle, right eye, and an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION Laws and Regulations When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to a “chronic” diseases listed under 38 C.F.R. § 3.309(a), such as arthritis. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Discussion The service treatment reports (STRs) from the Veteran’s period of active duty from March 1983 to March 1986 in pertinent part reflect treatment in January 1984 for abrasions of the face and neck and a back injury, diagnosed as a paravertebral muscle strain, sustained in a surfing accident. Also shown during service is treatment for a right ankle sprain in June 1984 with continuing treatment for such until January 1985. In April 1985, the Veteran underwent treatment for a particle in the right eye, at which time it was noted that there was a small black dot on the eye that was not movable and was irritating but did not result in impairment. The February 1986 separation is negative for the disabilities for which service connection is claimed and the Veteran specifically denied having “swollen or painful joints,” a “[b]one, joint or other deformity,” “[d]epression or excessive worry” and “[n]ervous trouble of any sort” on a medical history collected at separation from service. After service, the Veteran initiated a claim for service connection in April 2008, and he was afforded VA examinations in connection with claims for service connection for psychiatric, neck, back, and right ankle disabilities in December 2009. Opinions following each examination as to the relationship between the disability at issue and service were negative to the Veteran, with the December 2009 VA psychiatric examination also finding that the criteria for a diagnosis of post-traumatic stress disorder (PTSD) were not met. (While the claim for service connection for an acquired psychiatric disorder originally encompassed PTSD, the Veteran indicated in a statement received in January 2017 that he wished to drop consideration of service connection for PTSD in his appeal. An August 2017 Board of Veterans’ Appeals remand found the December 2009 VA examinations to be inadequate, and requested that the Veteran be afforded additional VA examinations to address his claims for service connection for psychiatric, neck, back, and right ankle disabilities. This remand also determined that a VA examination to address the claim for service connection for a right eye disability was necessary, and requested that the Veteran be afforded such an examination. The examinations requested by the Board were ultimately completed in August and September 2017, and again resulted in negative opinions as to the relationship between the disabilities at issue and service. These opinions were based on a review of the claims file and consideration of the Veteran’s assertions of relevant continuity of symptoms from service to the present time. Turning first to a low back disability, the rationale for the opinion following an August 2017 VA examination that it was less likely as not that the Veteran had a low back disability that was the result of service included the fact that the February 1986 separation examination was negative for a low back disability and that “[t]here is no objective evidence for continuity of care with persist[e]nt c/o back pain until 2008.” The examiner also concluded as follows: Due to lack of continuity of care related to a back condition since leaving service, h/o MVA in 1996[,] and 20-year h/o heavy labor employment as a cement finisher, this [V]eteran’s current degenerative disc disease of the lumbosacral spine is at least as likely as not due to wear and tear with 20-year history of employment as a cement finisher, work related injury[,] and MVA in 1996. As for a neck disability, the rationale for the opinion following an August 2017 VA examination that it was less likely as not that the Veteran had a neck disability that was the result of service included the fact that the February 1986 separation   examination was silent for a neck disability; the fact that the first post service report of neck pain followed a 1996 motor vehicle accident; and a history recorded in August 2008 of a construction site injury in which a cement truck driver accidentally lowered a five foot steel folding ladder onto the Veteran’s head. The examiner also set forth as follows: Veteran with reported approx[imately] 20-year history of heavy labor employment as a cement finisher. Therefore[,] this [V]eteran’s current degenerative arthritis of the cervical spine is at least as likely as not due to wear and tear with 20-year history of employment as a cement finisher, work related injury as documented 8/6/2008[,] and MVA in 1996. With respect to a right ankle disability, the rationale for the opinion following an August 2017 VA examination that it was less likely as not that the Veteran had a right ankle disability that was the result of service referenced the STRs reflecting treatment for a right ankle sprain but noted that a February 1985 x-ray of the right ankle conducted in service showed no facture, good alignment and was otherwise within normal limits and the fact that “[t]here is no objective evidence for continuity of care related to RT ankle pain from 1986 until 2009.” The examiner also found as follows: Veteran with reported approx[imately] 20-year history of heavy labor employment as a cement finisher. Therefore[,] this [V]eteran’s current RT ankle sprain is at least as likely as not due to wear and tear with 20-year history of employment as a cement finisher.   Turning to a right eye disability, a September 2017 VA eye examination concluded as follows: 1. presbyopia - not related to service, secondary to normal aging changes. 2. cyst in the lower lid - no lower lid cysts seen today - skin tag right upper eyelid - not related to service, benign neoplasm associated with aging - papilloma left upper eyelid - not related to service, skin growth secondary to human papilloma virus. 3. allergic conjunctivitis - not related to service, more likely secondary to environmental allergen exposure. 4. chorioretinal scars - not related to service. Finally with respect to a psychiatric disability, a September 2017 VA examination found that the Veteran’s “PTSD-like” symptoms (the criteria for a diagnosis of PTSD were not met at his examination) were primarily related to premilitary trauma and therefore less likely than not due to the Veteran’s military trauma/service. The examiner also found that VA clinical records demonstrated that the Veteran had a personality disorder that was related to childhood dysfunction and that such was therefore not caused or aggravated by service. (The undersigned also notes that personality disorders are not “diseases” for which service connection can be granted, and as a “matter of law” are not compensable disabilities. 38 C.F.R. § 3.303(c); Beno v. Principi, 3 Vet. App. 439, 441 (1992)). As for the Veteran’s persistent depressive disorder, the examiner stated as follows: Many records endorse some depression related to substance abuse, situational stressors[,] and unsatisfactory life circumstances. His current depression is therefore less likely than not due to his military service.   There is otherwise no positive medical evidence or opinion of record indicating that the Veteran has a low back, neck, right ankle, right eye, or acquired psychiatric disability that is the result of service that contradicts the negative medical opinions set forth above. To the extent the assertions of the Veteran or his representative are being advanced in an attempt to establish that the Veteran has a current disability due to low back, neck, right ankle, right eye, or acquired psychiatric disorder and service, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative are shown to have appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. Id. While the Veteran is competent to describe certain symptoms of the disabilities at issue from service to the present time, the Board finds them to not to be credible, in part due to the fact that it was over 20 years after service that the Veteran filed a claim for service connection for the disabilities at issue. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the appellant failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As a final matter, because arthritis of the neck or low back is not demonstrated within one year of service, presumptive service connection for these disabilities on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra.   In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for low back, neck, right ankle, right eye, and acquired psychiatric disorders. As such, these claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel