Citation Nr: 21068823 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 17-16 110 DATE: November 15, 2021 ORDER Service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD), is denied. REMANDED Service connection for a low back disability, to include low back strain and degenerative disc disease, is remanded. FINDING OF FACT The Veteran's acquired psychiatric disorder was not incurred in or caused by service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1991 to April 1994. In August 2020, the Board of Veterans' Appeals (Board) remanded his service connection claims to the agency of original jurisdiction (AOJ) for additional development. The claims are now ready for further review. Service Connection for an Acquired Psychiatric Disorder The Veteran contends that he has PTSD due to various in-service stressors, including treating injuries after a tank plunged off a cliff during a training exercise at Fort Irwin in California. The Board construes his PTSD claim broadly as a claim for an acquired psychiatric disorder, as the record shows multiple possible diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). After careful review, the Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). To establish service connection for PTSD, the record must include the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. §§ 3.304(f), 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The most probative evidence in this case comes from a September 2021 VA contract examination. The 2021 examiner interviewed the Veteran (via video telehealth), reviewed the claims file, and made detailed clinical findings about the nature and etiology of his current disability. Based on the examination and file review, the 2021 examiner determined that the Veteran's psychiatric disorder is best characterized as major depressive disorder. The examiner explained that although his medical records show a PTSD diagnosis, his symptoms do not meet the full DSM-5 diagnostic criteria for PTSD. Specifically, the examiner indicated that the reported tank accident would be adequate to support a PTSD diagnosis (while two other reported stressors were inadequate). However, the Veteran did not exhibit persistent avoidance of stimuli associated with the traumatic event (Criterion C) or negative alterations in cognitions and mood associated with the event (Criterion D). The Board finds the diagnostic summary in the examiner's report to be the most comprehensive on file. The 2021 examiner then determined that the Veteran's psychiatric disorder was less likely than not incurred in or caused by service. The examiner noted that the Veteran reported trouble sleeping in 1994, as documented in his service treatment records. However, the examiner found no other evidence of mental health-related symptoms, diagnoses or treatment while in service, or until 2012, 18 years after separation. The 2021 examiner highlighted medical records from 2012, which document depression symptoms associated with a spinal injury and surgical treatment. The examiner also noted subsequent records showing symptoms attributed to the Veteran's work as a medic during service, as well as other non-service-related stressors: trauma while working in a prison (including death and hangings); his wife's substance abuse; his father's death; and news detailing death. Given the absence of symptoms during service, the absence of reports of an in-service stressor prior to 2012, and the multiple non-service-related stressors that occurred around the time the Veteran's symptoms manifested, the 2021 examiner found it more likely than not that his diagnosed major depressive disorder is associated with the non-service-related stressors. The 2021 examiner's report and opinion are based on a thorough review of the available medical records, as well as the Veteran's competent, credible lay statements about the onset of his subjective symptoms. The examiner provided well-reasoned explanations with clear conclusions and supporting data. Accordingly, the Board finds this opinion highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent evidence in the record linking PTSD, or any other psychiatric diagnosis, to service. The Board acknowledges that VA treatment records list "chronic [PTSD] following military combat" as a diagnosis. See May 2019 Appellate Brief at 2. However, the record does not show, and the Veteran does not contend, that he actually participated in combat. Moreover, the record does not contain credible supporting evidence that the claimed in-service stressor (the tank accident) actually occurred. Although lay evidence alone may be sufficient to establish the occurrence of an in-service stressor in certain circumstances, such as when the stressor is related to combat or to the Veteran's fear of hostile military or terrorist activity, that is not the case here. See 38 C.F.R. § 3.304(f)(2), (3); Cohen, 10 Vet. App. at 145. On remand, the AOJ attempted to verify the tank accident stressor as instructed. The AOJ verified that an accident matching the Veteran's description occurred. However, the AOJ could not confirm that he had a role in treating the victims. Neither the Veteran nor his attorney responded to the AOJ's August 2021 request for additional information. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist is not a "one-way street"). The Board finds that the AOJ substantially complied with the 2020 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran previously reported that he received a medal for providing treatment after the tank accident. However, the personnel records on file do not corroborate this statement. In any event, the most probative evidence of record reflects that the Veteran's psychiatric disorder is not related to the tank accident or any other in-service stressor or cause. Thus, the preponderance of evidence is against the claim, and the benefit-of-the-doubt rule is not applicable in this instance. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection must be denied. REASONS FOR REMAND Service Connection for a Low Back Disability The Veteran maintains that his low back disability is related to back injuries in service. According to an August 2020 statement, he was told his S1, L4 and L5 discs were degenerating from "extreme use and injury" upon separation from service. See also August 2013 Notice of Disagreement ("when I left the military they diagnosed degenerative back disorder"). He also contends that the record contains x-rays confirming this diagnosis. February 2017 VA Form 9. Alternatively, he contends that the back disability is secondary to his service-connected bilateral shin splints. May 2019 Appellate Brief at 6. There are two VA medical opinions on file. Only the March 2015 opinion specifically addresses service connection on a direct basis. The 2015 examiner determined that the low back disability was less likely than not incurred in or caused by service because the "condition [in service] was acute only" and there is "no evidence of chronicity of care." The examiner did not elaborate further. The Board finds the 2015 opinion conclusory and inadequate. The 2015 examiner did not offer a clear medical rationale based on the available evidence. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (medical opinions are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). In fact, the examiner did not identify any relevant evidence in support of the opinion. Moreover, the 2015 examiner failed to clearly consider and discuss the Veteran's lay statements about his in-service injuries and the onset of his subjective symptoms. Miller v. Wilkie, 32 Vet. App. 249, 25960 (2020) (holding that a VA examiner "must address the veteran's lay statements to provide the Board with an adequate medical opinion"). The Board likewise finds the November 2020 opinion on secondary service connection inadequate because the 2020 examiner failed to discuss any relevant lay statements, or the favorable March 2019 opinion from "G.U.," a private practitioner. Notably, G.U.'s opinion references multiple medical studies on the relationship between lower extremity conditions, abnormal gait and/or lumbar spine conditions. Remand to the AOJ for an addendum opinion is necessary to decide the claim. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matter is REMANDED for the following action: 1. Obtain an addendum opinion on the nature and etiology of the Veteran's low back disability. Schedule another in-person examination only if the examiner deems it necessary to render the requested opinion. After reviewing the claims file (including this remand), the examiner must address the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability was incurred in or caused by service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is proximately due to his service-connected bilateral shin splints? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is aggravated beyond its natural clinical course by his service-connected bilateral shin splints? The examiner must clearly consider and discuss the Veteran's lay statements regarding the onset of his disability, including his August 2013 Notice of Disagreement, February 2017 VA Form 9 and August 2020 Statement in Support of Claim. The examiner must also clearly consider and discuss the March 2019 private opinion from "G.U.," including the pertinent medical literature referenced therein. 2. Review the medical opinion above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 3. Readjudicate the Veteran's claim. If it remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.