Citation Nr: 1828489 Decision Date: 05/08/18 Archive Date: 05/18/18 DOCKET NO. 16-59 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an anxiety disorder, to include as due to a back disability. REPRESENTATION Veteran represented by: Karl A. Kazmierczak, Attorney ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran had active service from April 2005 to July 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in October 2017, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran has a back disability, which is etiologically related to his active service. 2. The Veteran does not have an acquired psychiatric disorder that is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection - Back The Veteran maintains that he has experienced back pain since he was on active service. Specifically, the Veteran has asserted that he manifested symptomatology of back pain during active service after a fall down the stairs, when he injured his back. Service treatment records (STRs) indicate that the Veteran complained of and was treated for painful joints and back. Further, the Veteran indicated he had trouble walking. The Veteran is competent to report when he first experienced symptoms of back pain and that the symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. The Veteran was afforded VA examinations in August 2013 and January 2018 for his back disability. At those times, the VA examiner diagnosed lumbar degenerative arthritis with facet arthropathy. The examiners opined that the Veteran's back disability was not etiologically related to his active service. Specifically, the August 2013 VA examiner stated that the Veteran's degenerative joint disease of the lumbar spine was less likely as not caused by or a result of active service due to the lack of chronicity shown during and after service. The January 2018VA examiner stated the Veteran's statements regarding the onset of his back symptomatology conflicted with the medical evidence of record - which did not show continuity of symptomatology. Further, the January 2018 VA examiner noted that the radiographic findings in 2013 were more consistent with mild disc disease related to age, and thus opined the Veteran's back disability was not etiologically related to his active service. The Board finds the August 2013 and January 2018 VA medical opinions to be inadequate for adjudication purposes and assigns them little probative value, with respect to the Veteran's back disability. The Veteran has an accepted history of an in-service fall down the stairs, followed by credible evidence of subsequent back pain. The VA examiners failed to take into consideration the Veteran's lay statements regarding the onset and continuity of his symptomatology. As the August 2013 and January 2018 VA medical opinions are not adequate, they cannot serve as the basis of a denial of entitlement to service connection. Of record is an April 2017 letter from a private treatment provider, Dr. M.S., who reviewed the Veteran's record, to include medical records. In that letter, Dr. M.S. opined that the Veteran's back disability was related to his active service. In this regard, Dr. M.S. noted that the Veteran complained of back pain while on active duty. Further, Dr. M.S. noted that the Veteran's military occupational specialty (MOS) was that of heavy construction and equipment repair. A review of the Veteran's DD Form 214 shows that his MOS during active service was in fact construction equipment repair. Dr. M.S. further noted that the Veteran's complaint of back pain coincided with his MOS duties. In sum, the Veteran had reports of back pain during his active service. The Veteran has competently and credibly reported consistent symptomatology of his back disability during and since active service. In addition, a private physician has indicated that the Veteran's back disability was more likely than not related to his active service. Therefore, the Board finds that the preponderance of the evidence for and against the claim of entitlement to service connection for a back disability is at least in equipoise and reasonable doubt must be resolved in the Veteran's favor. Accordingly, entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection - Acquired Psychiatric Disorder The Veteran has claimed entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder. The Veteran maintains that he has a psychiatric disorder that began during active service. STRs are silent for complaints of, or treatment for a psychiatric disability while the Veteran was in active service. The Veteran was afforded VA examinations in September 2013, September 2016, and January 2018. At his September 2013 VA examination, the Veteran reported that he was raised in Georgia by foster parents from age 6. He stated that from a young age, he helped his brother sell crack cocaine, and that he was placed in foster care after his teacher reported the Veteran attending school in an unclean and disheveled manner. He reported a good relationship with his foster family, and that his foster parents died prior to active service. He reported no mental health issues prior to service and that during service his wife and superiors stated he suffered from hallucinations and anger management issues. He endorsed alcohol and cannabis use pre-military, during active service, and post-service. He reported that he was shot at the age of 22 during a robbery, and that he was shot on a separate occasion by his cousin who was cleaning his gun. He also reported being stabbed on 3 separate occasions. After mental status examination, the VA examiner opined that the Veteran did not meet the criteria for PTSD, but did have a diagnosis of anxiety disorder that was less likely as not incurred in or related to his active service. Further, the Veteran had cannabis dependence in early remission that was less likely as not incurred by or related to his military service. Moreover, the examiner determined that the Veteran's long history of cannabis abuse was at least as likely as not a cause of his depressive symptoms. Lastly, the Veteran had antisocial personality disorder that was less likely as not incurred by or related to his military service. The examiner supported those opinions by stating that the Veteran's STRs and post-service treatment records did not support the claim. Rather, the Veteran reported a history of childhood abuse and trauma prior to active service that were as likely as not the cause of or related to his mental health symptomatology. At his September 2016 VA examination, the Veteran reporting witnessing a fellow serviceman being shot during a live ammunition training event. He denied a history of child abuse, and any family history of mental illness. He also reported his mother and brother were shot during a robbery attempt during his active service, but that he was not present. The Veteran stated he first sought mental health treatment during active service after his mother and brother were killed. He reported multiple events in which he was stabbed. He endorsed the use of alcohol and cannabis. After mental status examination, the VA examiner opined that no mental health diagnosis could be determined without "resorting to mere speculation due to the over-endorsement of symptoms on objective psychological assessment in combination with inconsistencies noted within records." Thus, the VA examiner did not assign a diagnosis, and could not provide further assessment. After a review of the available medical evidence, the VA examiner determined that the Veteran had indication that any mental health diagnosis would be related to childhood trauma. The examiner reported using a standardized and normed self-report measure of personality factors and symptomatology associated with psychiatric conditions that were rendered uninterpretable and invalid due to the Veteran's active attempt to appear more psychiatrically disturbed. At his January 2018 VA examination, the Veteran denied a history of childhood abuse, denied any history of mental health hospitalization, and stated that he first sought treatment for mental health in December 2005 due to his depression. He endorsed the use of alcohol and cannabis on a regular basis. The Veteran denied that his mother and brother were shot during a robbery attempt, as previously stated at prior VA examinations. At first, the Veteran stated he could not recall making that statement and later stated he could not recall why he had made that statement at previous VA examinations. The Veteran denied being shot during a robbery attempt, and also denied being shot by his cousin who was cleaning a gun. The Veteran reported being stabbed on 3 separate occasions after separation from active service. After mental status examination, the VA examiner opined that the Veteran did not have a mental health diagnosis, and that a diagnosis could not be assigned without resorting to mere speculation due to the Veteran's inconsistent responses. Thus, it could not be established whether the Veteran had a psychiatric disability that clearly and unmistakably existed prior to active service. Further, the examiner noted that the Veteran's self-reporting of mental health treatment was inconsistent with the medical evidence of record. The examiner stated the Veteran had significantly exaggerated, over-endorsed, or feigned symptoms; causing the validity of the Veteran's responses to be suspect. Further, the examiner found that previous mental health diagnoses were based on the Veteran's self-reporting, of which the examiner found unreliable and therefore not adequately assessed previously. Moreover, any mental health diagnoses assigned were not subsequent to structured interviews of the Veteran, nor did they follow review of the Veteran's claims file. Thus, the VA examiner was unable to assign any mental health diagnosis, and could not provide a medical opinion with regard to service connection. The VA examiner noted that this opinion was rendered following a review of all available records, supporting documents, facts, circumstances, relevant research, clinical evaluation, interview of the Veteran, psychological testing, treatment records, military records, and the DSM-V criteria. The Board finds that the VA opinions, when read in conjunction with one another, are adequate because the examiners thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Of record is an April 2017 letter from a private provider, Dr. M.S. In that letter, Dr. M.S. opined that the Veteran's untreated back pathology and back pain were as likely as not a factor that directly contributed to the Veteran's depressive state. Dr. M.S. stated that the cause and relationship of pain and depression was well established, citing "research studies at NIH and in studies by other non NIH research groups" as support. The Board finds the April 2017 private medical opinion to be inadequate for adjudication purposes. First and foremost, the April 2017 private medical opinion was provided by a podiatrist and not a psychiatrist, psychologist, or any other kind of mental health treatment provider. Additionally, Dr. M.S. provided the opinion based on a review of the record. There was no in-person examination conducted by Dr. M.S. Further, based on actually psychiatric examination and testing, the Veteran has been found to not actually have an acquired psychiatric disability. Dr. M.S. referred to the Veteran's depression, but there is no confirmed diagnosis of depression of record. In contrast, the VA medical opinions were provided by psychologists after conducting both a thorough review of the record and an in-person mental status examination of the Veteran. For those reasons, the Board finds that the April 2017 private medical opinion to be of very little probative value. The Board also notes that the Veteran is generally competent to report when he first experienced mental health symptoms and that they have continued since service. However, once evidence is determined to be competent, the Board must determine whether that evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered, and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he is an interested party and stands to gain monetary benefits. However, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Here, the Board finds that the Veteran's statements that he has experienced mental health symptoms during and since service are not credible. Specifically, his statements are inconsistent with the other evidence of record. The Veteran did not report mental health symptoms while he was in active service. Since service, the Veteran's reports of onset and cause of his mental health symptoms have been wildly inconsistent to the point where the Veteran is unable to remember what he told to which examiner and why. Further, the Veteran's substance abuse is well-documented in the record and it has been found that such substance abuse could be the result of the Veteran's reported psychiatric symptoms. Additionally, the VA examiners have indicated that the Veteran is unreliable in his reports of his mental health symptoms and was attempting to appear more psychiatrically impaired than he actually was. Thus, the Board finds that the Veteran's statements that he has experienced mental health symptoms during and since service are not credible. In sum, the adequate medical opinions of record state that the Veteran does not have a psychiatric disability that is related to his active service. Moreover, the VA examiners indicated that assessments of the Veteran were unreliable due to the Veteran's inconsistent reporting and exaggeration of symptomatology. Further, the only positive opinion of record has been determined to be inadequate for adjudication purposes. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for an acquired psychiatric disability is not warranted. 38 U.S.C. § 5107(b) (2012); Gilbert, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs