Citation Nr: 21072887 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-09 759 DATE: December 6, 2021 ORDER Entitlement to service connection for a stomach disorder, to include hiatal hernia, ulcers, and gastroesophageal reflux disease (GERD), is denied. Entitlement to service connection for a back disability, upper and lower, so affecting the cervical and lumbar segments of the spine with associated radiculopathy of the upper and lower extremities, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's stomach condition began during his active military service or is otherwise related or attributable to his service. 2. The most probative (meaning most competent and credible) evidence does not suggest that a back disability, upper and lower, so affecting the cervical and lumbar segments of his spine with associated radiculopathy of his upper and lower extremities, initially manifested during his service, or to a compensable degree within a year of his separation from service or has had continuous symptoms since his service or is otherwise related or attributable to his service. 3. His acquired psychiatric disorder, including his depression and anxiety, is not caused or aggravated by a service-connected disability and is not otherwise shown to be related or attributable to his service. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for a stomach disorder, including for hiatal hernia, ulcers, and GERD. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria are not met for entitlement to service connection for a back disability, upper and lower, so affecting the cervical and lumbar segments of the spine with associated radiculopathy of the upper and lower extremities. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria are not met for entitlement to service connection for an acquired psychiatric disorder, including as secondary to any service-connected disability. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1987 to November 1988. This appeal to the Board of Veterans' Appeals (Board) is from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran more recently testified in support of these claims during a hearing in October 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In March 2021 the Board remanded these claims back to the RO, so back to the Agency of Original Jurisdiction (AOJ), for further development and consideration, including scheduling the Veteran for VA examinations for needed medical opinions concerning the origins of these claimed disabilities especially in relation to his military service. There since has been the required compliance, certainly acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). SERVICE CONNECTION Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of a relevant injury or disease, and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a "chronic" condition, per se such as arthritis, peptic ulcer (gastric or duodenal), and psychosis, a claimant may establish the second and third elements by demonstrating continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These chronic diseases also may be presumptively service connected if they manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of the Veteran separating from qualifying military service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3); 3.309(a). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Whether lay versus medical evidence is needed to support a claim is determined on a case-by-case basis and dependent on the type of condition being claimed in terms of whether complex versus simple. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 1. Entitlement to service connection for a stomach disorder, including hiatal hernia, ulcers, and GERD The Veteran contends that his stomach disorder onset during his service and has continued ever since. However, the Board concludes that, while the Veteran has a current diagnosis of a stomach disorder including owing to hiatal hernia, ulcers, and GERD, and his service treatment records (STRs) contain multiple complaints of an upset stomach, the preponderance of the evidence weighs against finding that his current stomach disorder began during his service or is otherwise related or attributable to his service, including to those complaints of an upset stomach he had in service. VA and private treatment records, as well as the Veteran's hearing testimony, show he did not receive a diagnosis of a stomach disorder of any sort until many years (indeed decades) after his separation from service. See July 2014 private treatment note. And while that, alone, is not dispositive of his claim, see 38 C.F.R. § 3.303(d), it is nonetheless probative evidence against his claim. See Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection when the Veteran had failed to account for lengthy period between the conclusion of his service and initial symptoms of the disability now being claimed). The Veteran is competent to conversely report having experienced continuous symptoms since his service. See October 2020 Board Hearing Transcript at page 13. But he is not competent to provide an opinion ascribing his symptoms to his later-diagnosed stomach disorders (hiatal hernia, ulcers, and GERD) and to, in turn, etiologically link his symptoms and these diagnoses to his service. This determinative issue is medically complex, not merely simple, as it requires knowledge of the pathology of these type disorders and the interpretation of complicated diagnostic testing and evaluation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, when asked to comment on remand concerning this determinative issue of causation, the July 2021 VA examiner opined that the Veteran's stomach disorder was less likely than not incurred in or caused by an in-service injury, event, or disease. The rationale was that the available medical literature and current medical understanding indicates hiatal hernia symptoms include: GERD, heartburn, bloating, burping, bad taste in mouth, and upset stomach, and the risk factors include being over 50 years old. See Hiatal hernia, Minesh Khatri, MD, December 24, 2019, webmd.com). This examiner acknowledged the Veteran's complaints of stomach pain/upset stomach during his service but concluded those stomach pains and any other symptoms resolved and did not return during his service and are not attributable to his current diagnoses. This examiner also acknowledged the Veteran's complaints of stomach issues since service but noted that records were unremarkable for any continuity of symptomology or resulting treatment until 2014 or thereabouts, so not until over 25 years after his discharge from service. This VA examiner consequently concluded that the Veteran's current stomach disorders (including his GERD and hiatal hernia) are less likely than not owing to his service. This examiner's opinion is probative because it is based on an accurate medical history and provides an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To reiterate, although the Veteran no doubt sincerely believes his stomach disorders contrarily are traceable back to his service, this determinative issue of causation is beyond his lay competence because the record does not show that he has the necessary medical training or credentials to make this type of determination. Consequently, the Board gives more probative weight to the July 2021 VA examiner's unfavorable medical opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the determinative issue of medical causation). For these reasons and bases, the preponderance of the evidence is against this claim, so the benefit-of-the-doubt doctrine does not apply, and this claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a back disability, upper and lower, so affecting the cervical and lumbar segments of the spine with associated radiculopathy of the upper and lower extremities The Veteran attributes this disability to a back injury during his service. As proof, he cites a history of back pain starting during his service and continuing since. A review of the Veteran's STR discloses several complaints of low back pain as early as in March 1988. He was placed on bed rest, but a follow-up examination indicated that his low back pain was improving. None of the medical and other records concerning his service suggest any chronic (permanent) resulting disability referable to his cervical and/or lumbar spine, including owing to degenerative joint disease (DJD), i.e., arthritis. His service ended in November 1988. There equally was no indication of arthritis of his cervical and/or lumbar spine within a year of the Veteran's discharge from service so by November 1989, so it cannot be presumed this disease was incurred during his service. In a July 2014 private treatment note, the Veteran complained of lower back pain radiating into his right leg. This private examiner indicated the Veteran had a history of chronic lower back pain for at least 25 years, radiating into his right leg, so dating back to his time in service or thereabouts. The Veteran also reported to that examiner that he had had imaging done in 2005, so in the interim, which had revealed two disk herniations and pressure (pushing) on his spinal cord; however, the Veteran did not bring the report of that imaging from 2005 to his then current evaluation. The Veteran subsequently testified during his October 2020 hearing before this Board that, after his service, he had sought treatment from chiropractors for his back pain. See October 2020 Board Hearing Transcript at pages 8-9. Partly because of this reported history, the Board remanded this claim back to the RO (AOJ) in March 2021 for more medical comment concerning the origin of this claimed disability especially in terms of whether related or attributable to the Veteran's military service. A July 2021 VA examiner indicated, in response, that it is less likely than not the Veteran's back disability is related to his service. After reviewing the medical records, also considering the Veteran's recitation of his medical history, this VA examiner conceded the Veteran had several episodes of back pain during his service but the first recorded complaint after his service was not until in 2014. This VA examiner explained that the Veteran has significant degenerative disease in his cervical and lumbar spine, and this occurs over years of stress on the spine. This VA examiner further explained that back strains are common and can occur with overuse. He acknowledged the Veteran's duties in service were strenuous, but he added the Veteran was in service only for about 1 year (from April 1987 to November 1988), and there is no treatment for several years following his service so most likely his service is not the cause of his current disease. In this regard, this VA examiner pointed out that it has been over 30 years since this Veteran's service, and he is over 50 years old. This VA examiner indicated that Degenerative Disc Disease (DDD) is the most common cause of low back and neck pain. The condition is an age-related wear and tear on the disc that causes pain and instability and conditions such as spinal stenosis can occur from DDD. In support of this proposition, the examiner cited: Causes of DDD Pain, Spine-Health.com, Brian McHugh, MD, 12/13/2017. Taking everything into account, this VA examiner therefore concluded that the Veteran's lumbar spine disability was less likely than not caused by his service. Regarding the Veteran's cervical spine disability and bilateral upper and lower extremity radiculopathy, this VA examiner concluded these additional disabilities are at least as likely as not proximate due to the Veteran lumbar spine disability. This VA examiner reasoned that, based on the result of an August 2018 electromyography (EMG), the Veteran has cervical radiculopathy and moderate, chronic left L5 radiculopathy without active denervation changes. This VA examiner concluded the Veteran has lumbar disease that can contribute to his lower extremity symptoms and cervical disease. This VA examiner explained there is a pathophysiological relationship between the lumbar spine disorder noted on examination DDD, IVDS, and lumbar stenosis and lower extremity radiculopathy and cervical radiculopathy. But this VA examiner then goes on to add that, while the upper extremities are not associated with the Veteran's lumbar spine disability, the upper extremities are related to his cervical condition. The most probative and therefore most persuasive medical opinion evidence disassociates the Veteran's cervical and lumbar spine disability and attendant upper and lower extremity radiculopathy from his service. And while the Board realizes the Veteran has reported experiencing continuous symptoms since his service and consequently receiving treatment from a chiropractor, and that the July 2014 private medical opinion suggest he had experienced low back pain for 25 years, so since 1989 or thereabouts (meaning since his service), the VA examiner considered that reported history yet, nonetheless, ultimately concluded the current disability is not attributable to the Veteran's service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). The July 2014 relaying of information is based on the Veteran's recollections of his back pain dating back to his service, in fact, pretty much exclusively on his self-recounted history of that. He did not provide that clinician with the imaging of his back reportedly done in the interim, in 2005. Furthermore, there is not the required affirmation of that reported history including in terms of attributing the Veteran's reported pain and other then current symptoms to a specific diagnosis such as DDD or arthritis (DJD) later made; instead, there was merely parroting of his subjective lay reports. And while it is true that a Veteran may be a credible historian, it is equally true the Board is not bound to blindly accept, as true, his self-recounted history especially when, as here, there are gaps in the evidence or insufficient documentation of the evaluation and treatment that he purports to have received continuously since his service. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). Moreover, when previously remanding this claim, the Board already discussed why the January 2021 medical opinion from the Veteran's treating private physician was insufficient reason to grant his claim, i.e., it did not contain the required rationale, which is where most of the probative value of a medical opinion is derived. See again Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board thus finds that the weight of the evidence indicates the Veteran has not experienced continuous symptoms since his service. His statements and hearing testimony to this effect are inconsistent or incongruent with other evidence of record showing that he at other times reported an onset of back pain conversely well after his discharge from service, most times in a clinical setting, when it was incumbent on him to give the most accurate medical history to in turn receive the most appropriate medical care. And, while it is true that he also reported back pain dating back to his service, in a clinical setting, the inconsistency in the reporting of his history concerning this tends to undermine the credibility of his statements. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Also, a pecuniary interest may affect the credibility of a claimant's testimony. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Furthermore, while the July 2021 VA examiner conceded the Veteran's cervical spine disability and bilateral upper and lower extremity radiculopathy all stem from his lumbar spine disability, for the reasons and bases discussed, the lumbar spine disability is not, itself, service connected, so these other disabilities necessarily cannot be secondarily related to his service by way of this underlying disability. 38 C.F.R. § 3.310. These claims resultantly are denied. 3. Entitlement to service connection for an acquired psychiatric disorder, including depression and anxiety The Veteran asserts that his acquired psychiatric disorder is directly related to his service or alternatively secondary to his back disability or stomach disorder. Secondary service connection may be established for disability that is proximately due to, the result of, or aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) indication the disability being claimed was either (a) caused or (b) being aggravated by the service-connected disability. See 38 C.F.R. § § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). During the July 2021 VA examination, on remand, it was observed the Veteran had received diagnoses of depression and anxiety in December 2013. After reviewing the Veteran's medical files and records, this VA examiner determined the Veteran's acquired psychiatric disorder, including his unspecified depressive disorder, is at least as likely as not (50 percent or greater probability) proximately due to and/or the result of his cervical and lumbar spine disorders and any associated radiculopathy of his upper and lower extremities. This VA examiner reasoned that the Veteran indicated that his mental health symptoms had occurred after experiencing back issues in "2013 or 2014", when he had what he called a "breakdown" owing to his health issues. This VA examiner also stipulated that, although medical records support that the unspecified depressive disorder is at least as likely as not due to the cervical and lumbar spine disorders and any associated radiculopathy of the upper and lower extremities, after a review of medical literature and the medical records it is less likely than not that the unspecified depressive disorder is due to or has been aggravated by the Veteran's hiatal hernia, ulcers, and GERD. Thus, there was only attribution of the acquired psychiatric disorder (more specifically, the unspecified depressive disorder) to the lumbar spine disability and associated cervical spine disability and upper and lower extremity radiculopathy, but none of these other disorders has been determined to be service connected to, in turn, provide the pathway to attributing the Veteran's mental disorder to his service secondarily by way of these other disorders. 38 C.F.R. § 3.310. The Board, therefore, next turns to additionally addressing possible entitlement to direct service connection for an acquired psychiatric disorder, but this other theory of entitlement also fails. Moreover, the Veteran does not have a psychosis (as opposed to a neurosis), so he does not have the type of mental disorder that may be presumed to have been incurred during his service even if it initially had manifested within a year of his discharge from service to a compensable degree, which, in any event, is not shown to have occurred. 38 U.S.C. §§ 1101, 1112; 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a), 3.384. The Veteran asserts that his acquired psychiatric disorder is a result of the death of his father while in service. He contends that, since service, he has been anxious and depressed. His father's death, however, while indeed unfortunate, is not due to anything as relating to the Veteran's service, instead, was merely coincident with his service. Moreover, the available evidence does not tend to indicate he had any symptoms of depression or anxiety during his time in service. His STRs are unremarkable for suggestion of that, and, to the contrary, he denied any history of psychiatric, emotional, or other problems in an April 1988 STR. The July 2021 VA examiner opined that the Veteran's acquired psychiatric disorder was less likely than not incurred during or caused by an in-service injury, event, or illness. This VA examiner reasoned that, when the Veteran was evaluated for a mental health disorder, he indicated that his mental health symptoms had incepted after experiencing back issues in "2013 or 2014" when he had what he called a "breakdown" due to his health issues. Additionally, this VA examiner noted that records from 1988 (during the Veteran's service) conversely deny any history of psychiatric, emotional, or marital problems at that time. The only evidence supporting the Veteran's contention that his acquired psychiatric disorder is directly related to his active-duty service are his own lay assertions. Lay evidence may be competent to establish medical etiology or nexus. Certainly, the Veteran is competent to determine that he is depressed or anxious. However, he has given different accounts of the cause of his decline in mental health. On the one hand, he has reported experiencing the effects of a mental health disorder continuously since being notified of his father's death while in service. But, notably, when officially diagnosed with an acquired psychiatric disorder in 2013, he did not relate this disorder back to his military service including to the death of his father while in service, instead, to his poor physical health and consequent breakdown. The disabilities affecting his physical health (namely, his lumbar spine disability, cervical spine disability, and radiculopathy) have not, themselves, been attributed to his service, hence, they cannot provide the pathway to secondarily link his mental disorder to his service by way of them. Moreover, the varying accounts of the time of onset and cause of his mental health disorder tends to undermine his credibility regarding when it started (i.e., during his service versus in the years since). A finding as to whether his lay statements are credible is a legal conclusion, one that is reserved for the fact finder that, in this instance, is this Board. As fact finder, when considering whether lay evidence is satisfactory, including credible, the Board may consider internal inconsistency of statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Competency differs from credibility; both are required to ultimately find evidence probative and therefore persuasive. In ultimately rendering a decision on appeal, the Board must analyze the credibility and competency of evidence to, in turn, determine its ultimate probative value, and in so doing account for the evidence that it finds to be persuasive or unpersuasive and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Based on review of the evidence, the Board finds that service connection is not warranted for an acquired psychiatric disorder, including as secondary to a service-connected disability, whether the low back disability, cervical spine disability, upper and lower extremity radiculopathy, and/or stomach disability, since they have not been determined to be service-connected disabilities. The July 2021 VA medical opinion is the most probative evidence concerning this posited correlation and, indeed, ultimately determinative of this claim since it does not attribute the mental impairment to a service-connected disability. Thus, in summary, the preponderance of the evidence is against this claim, in turn meaning the benefit-of-the-doubt rule does not apply, and this claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.