Citation Nr: 20042363 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 16-03 978 DATE: June 23, 2020 ORDER Entitlement to service connection for a back condition is denied. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder (GAD) and unspecified anxiety disorder is denied. FINDINGS OF FACT 1. A lower back disorder was not clinically shown in service, or for many years thereafter; lumbar arthritis was not compensably disabling within one year of separation from active duty; and such a disability is not the result of any incident of the Veteran’s period of active military service. 2. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder, to include GAD and unspecified anxiety disorder, that was incurred during or is related to his active duty service. CONCLUSIONS OF LAW 1. A lower back disorder was not incurred in or aggravated by service, and lumbar arthritis may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 2. The criteria for service connection for an acquired psychiatric disorder to include GAD and unspecified anxiety disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran performed active duty service from September 1973 to July 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. The Board remanded these issues for additional development in September 2018. Service Connection 1. Entitlement to service connection for a back condition The Veteran contends that he suffered a back disorder due to military service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For certain disabilities, such as arthritis, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran’s discharge from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service treatment records reveal the Veteran had a spinal tap performed due to a possible drug overdose in September 1974, after which he complained of back pain. The test was negative. He reported back trouble in his June 1975 separation report of medical history, and the physician elaborated: “rec[urrent] back pain – spinal tap – negative – never had back injury.” His report of medical examination showed a normal spine upon clinical examination. This establishes the first element of service connection, an in-service injury. Post service VA treatment records reveal that close in time to filing his claim, the Veteran’s initial complaint of chronic low back pain was made in February 2012 when he reported his back was stiff when he first rises from a chair or bed. His spine was nontender and he was able to bend to 75 degrees but had some difficulty straightening back up. The assessment was to evaluate for chronic low back pain, include an x-ray, and treat with ibuprofen. In September 2012, he reported severe low back pain since military service “when he had a lumbar puncture and suffered what sounds like possibly a [cerebrospinal fluid] CSF leak.” Lumbar x-ray at that time showed mild disk space narrowing at L4-L5 and L5-S1 and possible L5 compression fracture. The Veteran did not report for his schedule MRI. The assessment was chronic axial low back pain. In an October 2014 VA treatment record, the Veteran reported “long-standing chronic low back pain for over a decade.” VA treatment records continued to show recurrent back pain. MRIs revealed degenerative disc disease (DDD) and facet arthropathy in March 2015, and arthritis in May 2017. The January 2016 VA examiner diagnosed degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). This establishes the second element of service connection, a current back disability, diagnosed as degenerative arthritis with facet arthropathy and IVDS. The question before the Board is whether the Veteran’s current back disability is related to the spinal tap and back pain in service. In the Veteran’s February 2014 notice of disagreement, he stated that his back disability is due to a spinal tap performed during service. On his January 2016 form 9, the Veteran stated he continues to suffer from low back pain. Social Security Administration (SSA) records show the Veteran’s occupation post-service was bricklayer from September 1984 to July 2014. A VA examination was conducted in January 2016. The examiner determined that the appellant’s low back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that while the Veteran did note "recurrent back pain" in his discharge physical examination report of June 1975, the examiner did not diagnose a back condition and physical examination findings related to the back were normal at that time. His scrutiny of the STR revealed no record of a back injury or condition. However, the Veteran reported back pain and a headache in September 1974, both symptoms having started following an earlier lumbar tap. His diagnosis at that time was post-spinal headache. Post-service examination shows that he was silent for back conditions until he was diagnosed with "back pain" in April 2012. Subsequently, an MRI done in March 2015 demonstrated degenerative disc disease and facet arthropathy. On interview with the Veteran, he stated that he was a brick layer “all my life” since leaving service and only retired about 2 years ago. He stated he had to retire because of his back. On examination, the Veteran's demonstrated mildly decreased range of motion on extension, which is consistent with the MRI findings of facet arthropathy. The examiner opined that the evidence does not support that the back pain in service resulted in the current diagnosis of degenerative spine. His rationale was that the Veteran's current back diagnosis of degenerative disc disease is instead related to chronic wear and tear, aging and genetics. It is not related to back pain that occurred during service because the back pain during service was likely a sequela related to the lumbar tap and evidence does not show that it resulted in a chronic condition. The Board finds this opinion provides a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also finds the opinion consistent with the evidence that the Veteran worked in a physically demanding job as bricklayer for decades after service. While the appellant may sincerely believe that his low back condition is due to the spinal tap in service, as a lay person untrained in the field of medicine he is not competent to offer a medical opinion linking his current diagnoses to service. The relationship between a spinal tap and possible CSF leak and arthritis more than 30 years later is a complex medical question and falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, there is no competent evidence linking the Veteran’s current back condition to service. The only competent nexus evidence provided is the January 2016 VA exam which is against his claim. There is also no evidence of arthritis within one year of separation from service, so service connection may not be presumed under 38 C.F.R. § 3.307. Without a link to service, service connection cannot be granted. Since the preponderance of the evidence is against the claim, reasonable doubt may not be resolved in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim of entitlement to service connection for a back disability is denied. 2. Entitlement to service connection for an acquired psychiatric disability, to include generalized anxiety disorder The Veteran contends his acquired psychiatric disability to include generalized anxiety disorder (GAD) is due to service. Service treatment records (STRs) reveal the only mental health complaint in service was of depression in February 1975. He underwent a mental hygiene consultation, and the treating psychiatrist diagnosed “psychoneurotic depressive reaction secondary to his father’s recent sudden death.” This diagnosis was being treated “in psychiatric channels.” The psychiatrist recommended an administrative discharge, not because it was a disqualifying psychiatric illness but in order to allow the Veteran to care for his sick mother following his father’s death. Three months later, in the separation report of medical history in June 1975 the Veteran indicated “yes” for “nervous trouble of any sort” but “no” for “depression or excessive worry.” The separation examination indicated a normal psychiatric evaluation. The diagnosis in service establishes the element of an in-service disease. Post service VA treatment records the Veteran reported a history of anxiety disorder in 2012. In July 2014, depression and post-traumatic stress disorder screens were negative, and the Veteran’s anxiety was being controlled with medication. In October 2014, he reported a history of generalized anxiety disorder, but the only psychiatric impressions made by the physician were marijuana and cocaine abuse in remission. In December 2014 he requested a mental health consult for anxiety and depression and generalized anxiety disorder was listed as an active problem, though there was no treatment record diagnosing it. At the resulting February 2015 psychology consult, he complained of panic attacks and anxiety for “many years”, triggered by heights and getting very angry and upset. Since he was no longer working, he had increased problems with anxiety. The Veteran also reported these symptoms in connection with mistakes made in the past and regrets. He had a history of multiple substance abuse treatment programs and was currently in remission. The VA neuropsychologist diagnosed unspecified anxiety disorder, alcohol use disorder in full sustained remission, and cocaine use disorder in full sustained remission. In a March 2015 SSA application, the Veteran listed anxiety as one of 13 diagnoses affecting his ability to work but did not elaborate. In August 2016, VA treatment records show he was still having intermittent issues with anxiety but was not requesting follow-up for this issue. A March 2018 VA pharmacy consult stated: “patient has a documented diagnosis of Generalized Anxiety Disorder or Social Anxiety Disorder.” In February 2019, the Veteran “denied depression/anxiety/SI/HI.” The February 2015 diagnosis of unspecified anxiety disorder and March 2018 note of a documented diagnosis establish the element of a current disability. The question before the Board is whether the current disability is related to the in-service psychoneurotic depressive reaction. A VA examination was conducted in May 2017. The examiner checked “No” when asked if the Veteran is or has ever been diagnosed with a mental disorder. The Veteran reported he had no psychiatric treatment history. Following a summary of VA treatment records described above, the examiner determined the Veteran did not have a mental disorder for VA purposes and opined “it is not likely that the veteran’s depression in the military, which was the result of grief and current life stress, is related in any way to his more recent reports of anxiety.” The examiner explained that the Veteran seemed to have some brief depression that was appropriate given the situation back in 1975 when his father died, and noted that it specifically was not a disqualifying diagnosis. The Veteran then went for many years with no mental health treatment or complaints. “VA records between 2014 and 2016 seemed to refer to some anxiety feelings and regrets over past legal problems, though he appears to have had no actual treatment. It is also noted that depression was not a complaint, as numerous VA depression screenings were entirely negative. Any past description of anxiety the last few years also seems to be indicating it was quite mild. In today's exam, the Veteran denied any significant mental health symptoms.” The VA examiner’s opinion contains an initial factual misstatement that the Veteran has never been diagnosed with a mental disorder. However, the examiner goes on to discuss the Veteran’s history of symptoms and while the examiner found no current diagnosis in 2017, he offered an opinion that addresses the question at hand: the relationship between the Veteran’s symptoms of anxiety during the appeal period and his psychiatric diagnosis in service. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl; Nieves-Rodriguez v. Peake. Moreover, it is consistent with the STRs, which attribute the diagnosis directly to the death of the Veteran’s father. While the appellant may sincerely believe that his anxiety is related to the in-service psychoneurotic depressive reaction, as a lay person untrained in the field of medicine he is not competent to offer a medical opinion linking his current diagnosis to service. The relationship between a psychoneurotic depressive reaction and anxiety more than 30 years later is a complex medical question and falls outside the realm of common knowledge of a lay person. Jandreau. The only competent evidence provided determined that there is no nexus between service and the Veteran’s current disability. Since the preponderance of the evidence is against the claim, reasonable doubt may not be resolved in the Veteran’s favor. Therefore, the Veteran’s claim of entitlement to service connection for acquired psychiatric disorder to include generalized anxiety is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony L. Hines Associate Counsel 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.