Citation Nr: 18158513 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 13-34 598 DATE: December 17, 2018 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left leg disability, to include as secondary to a back disability, is denied. Entitlement to service connection for an acquired psychiatric disability, to include adjustment disorder with depressed mood, is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a relationship between the Veteran’s service and his back disability. 2. The preponderance of the evidence weighs against a relationship between the Veteran’s service and his left leg disability. 3. The preponderance of the evidence weighs against a relationship between the Veteran’s service and his acquired psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left leg disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1974 to July 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision. They were remanded by the Board in November 2017. Service Connection 1. Entitlement to service connection for a back disability The Veteran contends that he injured his back when he slipped and fell in the mess hall in May 1975. The question for the Board is whether the Veteran has a current 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 a diagnosis of degenerative disc disease (DDD) of the lumbar spine, the preponderance of the evidence is against finding that it began during active 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). The March 2018 VA examiner opined that the Veteran’s lumbar spine disability is less likely as not related to an in-service injury, event, or disease. As well, the preponderance of the evidence weighs against finding that an in-service injury occurred. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). While the Veteran is competent to report that he slipped and fell, hitting his back during service, his reports are not credible due to internal inconsistency and inconsistency with other evidence in the record. Specifically, the Veteran testified that he slipped and fell in the mess hall, and woke up in the hospital, where he stayed for two weeks in traction. He stated his testicles were injured, he tore cartilage in his left knee, and he was told he would have problems with his sciatic nerve the rest of his life due to a disc injury. While the Veteran’s service medical records—to include records obtained because of the Board’s 2017 remand—reflect treatment for a testicular problem, epididymitis, in May 1975, they are silent for back problems, including hospitalization in traction. The Veteran also denied recurrent back pain on his July 1975 Report of Medical History, and a Report of Medical Examination at the same time reflected a normal spine. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Veteran’s self-report upon separation from service contradict these current lay statements. While the Veteran believes his lumbar spine degenerative disc disease is related to an in-service fall, the Board reiterates that the preponderance of the evidence weighs against finding that such an in-service injury occurred. For this reason, service connection for a lumbar spine disability is denied. 2. Entitlement to service connection for a left leg disability, to include as secondary to a back disability The Veteran contends he has a left leg disability due to torn cartilage in his knee from the May 1975 fall, or due to his back disability. The Board reiterates that for the reasons discussed above, while the Veteran has a diagnosis of left knee degenerative joint disease (DJD), the preponderance of the evidence is against finding that it began during active 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). While the Veteran is competent to report he tore cartilage in his left knee when he slipped and fell in May 1975, his reports are not credible due to internal inconsistency and inconsistency with other evidence in the record. His service medical records—to include records obtained because of the Board’s 2017 remand—reflect treatment for a testicular problem, epididymitis, in May 1975, but they are silent for left leg problems, to include anything pertaining to his knee or torn cartilage. The Veteran also denied “lameness” on his July 1975 Report of Medical History, and a Report of Medical Examination at the same time reflected normal lower extremities. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Veteran’s self-report upon separation from service contradict these current lay statements. While the Veteran believes his left leg disability is related to an in-service fall, the Board reiterates that the preponderance of the evidence weighs against finding that such an in-service injury occurred. The March 2018 VA examiner also opined that the Veteran’s left knee DJD was less likely as not related to an in-service injury, event, or disease for these same reasons. Service connection is available on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, since a low back disability is not service connected, secondary service connection cannot be established for a left leg disability. The Veteran has made no other assertions as to a relationship to service. For the reasons above, service connection for a left leg disability is denied on a direct and secondary basis. 3. Entitlement to service connection for an acquired psychiatric disability, to include adjustment disorder with depressed mood The Veteran contends he has an acquired psychiatric disability due to his back and leg disabilities. To reiterate, service connection is available on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. Here, since a low back disability and a left leg disability are not service connected, secondary service connection cannot be established for an acquired psychiatric disability. The March 2018 VA examiner opined that the Veteran’s acquired psychiatric disability was less likely as not related to service, to include any service-connected disabilities, for this same reason. Service connection is not in effect for any disability. The Veteran has made no other assertions as to a relationship to service. For the reason above, service connection for an acquired psychiatric disability is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dean, Counsel