Citation Nr: 20021620 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 12-27 439A DATE: March 26, 2020 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, anxiety, and post-traumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s back disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder to include have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1945 to November 1945. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). Subsequent to the issued rating decision, the Veteran filed a timely notice of disagreement for each claim on appeal. During the pendency of the claims, the Veteran passed away in March 2013. Thereafter, in April 2013, the Appellant filed a claim for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits (VA Form 21-534). From October 10, 2008, an eligible person may process the Veteran’s claim to completion if a request for substitution is filed no later than one year after the date of the Veteran’s death. 38 U.S.C. § 5121A. Here, the Appellant filed a VA Form 21-534 within the applicable time frame and, the Agency of Original Jurisdiction recognized her as a valid substitute for the Veteran. The Board issued a remand in November 2018 instructing the RO to obtain VA medical opinions for the Veteran’s claims. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained December 2019 VA examinations and issued a supplemental statement of the case. The Board finds the RO substantially complied with the November 2018 remand directives. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for a back disability. The Veteran contended that his back disability started in service and has persisted since that time. In a March 2012 notice of disagreement, the Veteran stated that his claimed conditions were a direct result of a grenade that exploded near him while he was in training in Puerto Rico. Post-service treatment records show the Veteran was diagnosed with a back disability at some time before the filing of the claim or during the pendency of the appeal. See e.g., October 1996 Private treatment record; November 1998 Private treatment record; September 2002 San Juan VAMC. However, records do not indicate the back disability developed within one year after service. In a June 1965 medical record, the Veteran reported that he was in an accident in 1961 in which he received multiple fractures to his musculoskeletal system such as his spine and leg. Service treatment records (STR) from the Veteran’s time in service are unavailable. However, the Veteran has a clinically normal separation examination. See November 1945 separation examination. Giving benefit of the doubt to the Veteran, he was afforded a VA examination to determine the nature and etiology of his disability in November 2019. The examiner opined that the back condition was less likely than not (less than 50% probability) incurred in or caused by the claimed service injury, event, or illness. The examiner reasoned this to be true because the medical records were silent for history of an injury during combat and the medical records were silent for the claimed condition. The Board acknowledges the Veteran’s assertion that his back disability is related to his military service. However, lay persons are not considered competent to medically attribute a back disability to his active military service, as doing so requires medical knowledge and expertise that the Veteran and his supporters have not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the medical evidence of record answered the question of whether the Veteran’s back disability is related to his military service. The Veteran has not provided a medical opinion in support of his claim. Consequently, the Board gives more probative value to the November 2019 VA medical opinion as it was prepared by a skilled, neutral medical professional after review of the claims file. Furthermore, it is supported by a complete rationale. The Board assigns greater probative value to the STRs, which show normal clinical evaluation of the back and the many years intervening service and the first documented complaints/findings for low back disability, along with the negative November 2019 VA medical opinion. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contended that his psychiatric disorder was caused by or a result of his military service. In an August 1996 statement, the Veteran stated that he often suffered flashbacks of the war and heard explosions. The Veteran stated that his spouse catches him talking to himself because he hears voices. Post-service treatment records show the Veteran developed a psychiatric disorder before or during the pendency of the claim. See e.g., November 2012 VA treatment record; February 2013 VA treatment record; December 2016 Private treatment record. However, records do not indicate the disorder developed within one year of discharge. Service treatment records (STR) from the Veteran’s time in service are unavailable. However, the Veteran has a clinically normal separation examination. See November 1945 separation examination. In a June 1965 psychiatric examination, the Veteran reported that he was in an accident in 1961 in which he received multiple fractures to his musculoskeletal system such as his spine and leg. The physician described the Veteran has coherent, relevant and in full contact, cooperative, showing adequate affect and a neutral mood. Memory was intact and judgement was unimpaired. The physician opined that the Veteran did not have any psychiatric illness at that time. The Veteran was afforded a VA examination in November 2019 to determine the nature and etiology of his disorder. The examiner reviewed the Veteran’s medical records and noted that the Veteran was provisionally diagnosed in November 2012 and the symptoms started seven to eight years prior to the diagnosis. The examiner also noted no mental health history prior to the 2012 evaluation. The examiner reasoned that the psychiatric disorder was less likely than not (less than 50% probability) incurred or caused by the claimed in-service injury, event, or illness. The examiner reasoned this to be true, because report of mental health concerns did not occur until nearly 50 years after service. The physician noted that it was atypical for mental health symptoms to present and become impairing after several decades have passed. The Board acknowledges the Veteran’s assertion that his psychiatric disorder is related to his military service. However, lay persons are not considered competent to medically attribute a psychiatric disorder to his active military service, as doing so requires medical knowledge and expertise that the Veteran and his supporters have not been shown to possess. See Kahana v24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the medical evidence of record answered the question of whether the Veteran’s psychiatric disorder is related to his military service. (Continued on the next page)   The November 2019 VA examination did not support the Veteran’s assertion. The examiner provided a detailed summary of the evidence of record and made pertinent comments as to the meaning and relevance of that evidence. The examiner considered the Veteran’s lay statements as well as the Veteran’s medical history. The examiner provided a well-supported rationale for his opinion and answered specific questions related to the relationship of the back disability and the Veteran’s military service. There are no other medical opinions of record in opposition to the VA examination. Overall, the evidence of records showed no complaints of a psychiatric disorder in service, treatment of a psychiatric disorder many decades after service, and no relationship between the psychiatric disorder and his military service. Accordingly, the criteria to award entitlement to service connection for a psychiatric disorder has not been established, either through medical or probative lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a psychiatric disorder that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.