Citation Nr: 21066161 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 12-14 868 DATE: October 28, 2021 ORDER Service connection for arthritis, to include a right knee condition, is denied. Service connection for a back condition is denied. REMANDED Service connection for an acquired psychiatric disorder (APD), to include major depressive disorder (MDD) and anxiety disorder, not otherwise specified (NOS), is remanded. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran's right knee condition had its onset during his active-duty service or within one-year post active-duty service, or is otherwise related to his active-duty service. 2. The weight of the evidence is against finding that the Veteran's low back condition had its onset during his active-duty service or within one-year post active-duty service, or is otherwise related to his active-duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for a low back condition have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to May 1969. This appeal was previously before the Board in November 2014, January 2017, April 2018, and most recently in January 2021. In January 2021, the Board remanded the issues for further development and will be discussed in their appropriate sections. Service Connection Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Service connection for a right knee condition is denied. 2. Service connection for a low back condition is denied. The Veteran asserts that his low back condition and arthritis are due to his military occupational specialty (MOS) as a supply specialist, which required heavy lifting of boxes and laundry. The Veteran's service treatment records (STRs) do not appear to show any complaints for a low back condition, knee conditions, or any arthritis conditions. For example, the January 1969 separation examination showed a normal clinical evaluation of all body systems, to include the spine, and upper and lower extremities. Further, the Veteran specifically denied having any knee or back trouble, and also denied having arthritis or rheumatism, in the "HAVE YOU EVER HAD OR HAVE YOU NOW" questionnaire section of the separation examination report. The Board notes that a review of the Veteran's post-service treatment records shows that radiographic studies have shown the Veteran to have arthritis in the right knee and in the lumbar spine. The Veteran has also been diagnosed with rheumatoid arthritis. See VA Treatment Record dated February 7, 2019. The Board notes that the Veteran has asserted that his arthritis is due to his in-service heavy lifting of boxes and laundry. The Board also acknowledges that the Veteran has a diagnosis for rheumatoid arthritis, which his treatment records show that he experiences mostly in his hands and fingers. See VA Treatment Record dated December 28, 2018. However, the Board notes that rheumatoid arthritis is an autoimmune disease. Given the Veteran's assertion, that heavy lifting during his active-duty service has caused him to develop arthritis, the Board has construed his service connection claim for arthritis, to be a service connection claim for a right knee condition, because the records show that he has only been diagnosed with arthritis in the right knee and in the lumbar spine. The Veteran was afforded a VA examination for his right knee in January 2020. After an in-person examination and a review of the Veteran's claims file, the examiner provided a negative nexus opinion. The examiner explained that the STRs are silent for complaints, evaluation, or treatment for any knee conditions, or within five years after his discharge from the military. Thus, the examiner concluded by reporting that the present findings were diagnosed many years after his discharge and are not related to his active-duty service. The Veteran was also afforded a VA examination for his back in January 2020. After an in-person examination and a review of the Veteran's claims file, the examiner provided a negative nexus opinion. The examiner explained that the lumbar spine condition was related to the changes of the normal aging process. In January 2021, the Board found that the January 2020 examiner failed to provide any scientific or medical literature in support of the natural aging progression rationale and more importantly, did not address the Veteran's assertions. The Board noted that the April 2018 Board remand directives specifically requested that the examiner discuss the Veteran's assertion that he has arthritis and a back condition as a result of his MOS as a supply specialist. The Board found that the January 2020 examination report, for both the right knee and the back, was not in substantial compliance with the April 2018 Board remand directives and remanded for new VA examinations for the right knee and the back. Specifically, the respective examiners for the right knee and the back were asked to discuss the Veteran's assertions that his arthritis and back condition were a result of his MOS as a supply specialist. The Veteran was afforded a VA examination for his right knee and back in March 2021. The VA examiner provided nexus opinions for both the knee and the back. Regarding whether the onset of the Veteran's back condition was during active-duty service or within a year of his separation from service, the examiner provided a negative nexus opinion. The examiner explained that there was no evidence in the Veteran's STRs concerning a lumbar spine condition, or within a year of his separation from the military. The examiner acknowledged the April 2018 x-ray report which shows osteoporosis of the vertebral bones and the January 2020 diagnosis for multilevel degenerative disc disease correlates with the normal atraumatic changes of the aging process. Further, the latest medical literature does not support the concept of heavy lifting as the etiology of osteoarthritic degenerative changes. The examiner explained that the medical literature actually supports the positive effects of participating in regular physical activities, including strength training, as a mode of prevention and symptoms treatment for osteoarthritis and degenerative changes. Regarding the right knee condition, the examiner provided the same rationale for their negative nexus opinion. Here, given the Veteran's assertions that his arthritis/right knee and back condition were due to his in-service heavy lifting, a VA examination was ordered to address the lay and medical evidence of record. The March 2021 VA examiner provided an etiology opinion regarding the Veteran's right knee and low back conditions, and took into account his medical records, as well as his assertions that he participated in heavy lifting as a supply specialist. As such, the Board finds that there has been substantial compliance with the January 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). To the extent that the Veteran believes that his right knee condition or low back condition are the result of his in-service heavy lifting, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide such a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran's assertions, a VA examination was ordered, which took into account his assertions, his STRs and the medical literature. Unfortunately, the March 2021 VA examiner provided negative nexus opinions for both the right knee and the back. The Board also emphasizes that the Veteran has not provided any competent medical opinions that would otherwise undermine the March 2021 VA examiner's medical opinion of record. Here, there is simply no positive competent evidence indicating that the Veteran's right knee or back conditions are due to his active-duty service, such that service connection would be warranted. The Board acknowledges the Veteran's sincere belief that his in-service reports of heavy lifting has caused the degenerative arthritis in his right knee and lumbar spine. However, the March 2021 VA examiner provided negative nexus opinions. The VA examiner's opinion is afforded great probative weight because they were able to review the Veteran's claims file, and provided a robust and well-reasoned rationale to support their opinion. The March 2021 VA examiner explained that the latest medical literature does not support the concept of heavy lifting as the etiology of osteoarthritic degenerative changes. Instead, the medical literature supports the positive effects of participating in regular strength activities. The Board notes that the Veteran has not made any assertions that the heavy lifting he participated in as a supply specialist involved incorrect form, that he did not have any preventative equipment, such as a back brace, or that he had any specific injuries to his back or knee due to heavy lifting. Further, the contemporaneous evidence of record does not support the Veteran's assertion that the onset of his knee and back conditions were during his active-duty service. For example, his separation examination showed a normal clinical evaluation of his spine and upper and lower extremities; and he denied any trouble with arthritis, his back, or his knees in the questionnaire section of the examination report. On the other hand, while the Board has considered the Veteran's lay statements and assertions regarding the onset and etiology of his arthritis and low back condition, it is given very little probative weight because although he is competent to the extent that he can provide information regarding what he experienced through his senses, he is not competent (meaning medically qualified through training or expertise) to provide a medical opinion, such as determining when he was diagnosed with degenerative arthritis, or the etiology of his right knee or low back condition. The Board acknowledges that the Veteran has provided credible statements regarding his in-service experiences. The Board would like to express that it has heard the Veteran's statements and assertions, and has seriously considered them. It was in recognition of these reports of symptoms that the Board remanded the claim in January 2021 to obtain medical opinions. However, no matter how sincere the Veteran's belief in their claim is, his lay assertions cannot be considered competent medical evidence and he cannot provide an etiology opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, service connection for a right knee condition and a low back condition are denied. REASONS FOR REMAND Service connection for an APD is remanded. The Veteran asserts that his APD is due to his military service because he did not have depression before his service. See Form 9 received May 31, 2012. This appeal was previously before the Board in April 2018 and most recently in January 2021. The April 2018 Board remand directives asked that a VA examiner provide an opinion that took into account whether the Veteran's STRs, which documented a stomach disorder that may be due to a nervous condition. The Veteran was afforded a VA examination in January 2020 and the examiner provided a nexus opinion. However, in January 2021, the Board found that the January 2020 VA examiner did not address the evidence pointed out by the April 2018 Board decision. The January 2021 Board remand found that there was non-compliance with the April 2018 Board remand directives, and remanded for a new VA examination. The Veteran was afforded a VA examination in March 2021. After a review of the Veteran's claims file, to include the January 2021 Board remand, the examiner provided a negative nexus opinion. Regarding the Veteran's in-service diagnosis for passive dependent personality disorder, the examiner explained that this was a refractory and developmental disorder and was not compensable. The examiner also reported that the personality disorder was sub-acute, transient, and resulted in no residual disability. In the absence of findings of residual and continuity of symptomatology, service connection was not warranted. Regarding the current diagnosis, the examiner determined that the Veteran's MDD was also not found to be related to his service. The examiner explained that there was no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment prior to military service, during, or within one year after discharge. The Veteran sought formal psychiatric treatment many years after his military service, and that there was no relationship between his military service and the mental health condition he was diagnosed with after his separation from the military. Regarding aggravation, the examiner explained that the Veteran sought psychiatric care many years after service and that a temporal relationship had not been established between the psychiatric disorder and his service. Here, the Board finds that the March 2021 VA examiner did not discuss whether the Veteran's STRs, which documented a stomach disorder that may be due to a nervous condition. As such, the Board finds that there has not been substantial compliance with the January 2021 Board remand directives. The Board regrets that another remand will further delay a decision in this case. However, a remand by the Board confers on a claimant, as a matter of law, the right to compliance with remand requests. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that a new VA examination is necessary so that the Board can make a fully informed decision. Accordingly, service connection for an APD is remanded. The matter is REMANDED for the following actions: 1. Obtain an addendum opinion regarding the etiology of the Veteran's APD. If the examiner decides that an examination is necessary, then one shall be scheduled. Thereafter, the examiner should address the following: (Continued on the next page) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran has an APD that had its onset during active-duty service, or within one year of the Veteran's separation form the military, or is otherwise related to service? The examiner should specifically discuss the Veteran's anxiety disorder and the Veteran's STRs which noted a stomach condition that may be related to a nervous condition. The examiner's attention is directed towards the March 2021 VA examination report, which was found to be inadequate by this Board decision. The March 2021 VA examiner was specifically asked to discuss the Veteran's previously diagnosed anxiety disorder, NOS, and whether the STR which documented a stomach disorder that may be due to a nervous condition. However, the examiner did not do so. A complete rationale must be provided for all opinions. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.