Citation Nr: 21007010 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-23 745 DATE: February 8, 2021 ORDER Service connection for a low back disability is denied. REMANDED The issue of service connection for an acquired psychiatric disorder, to include anxiety, obsessive-compulsive, and adjustment disorders, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a lumbar spine disability began during military service, that lumbar spine arthritis manifested to a compensable degree within one year of separation from service, or that a lumbar spine disability is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran presented testimony before the Board. In November 2019, the Board remanded these matters for further evidentiary development. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show the existence of (1) 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that such a disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Low Back Disability The Veteran asserts that he has a lumbar spine disability that is related to service. Specifically, he asserts that during service, he had two low back injuries that caused his current low back disability and that he has had low back problems since service. See Board hearing transcript dated August 2019. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, although the Veteran has current diagnoses of lumbar arthritis and lumbar disc disease, and evidence shows that the Veteran suffered from a lumbar strain in service, the preponderance of the evidence weighs against finding that the Veteran’s lumbar arthritis and lumbar disc disease began during service or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a), (d). The February 1971 enlistment examination report shows a normal clinical evaluation of the spine. Service treatment records (STRs) reflect the Veteran strained his back in service while lifting and that he complained of back pain in service. See STRs dated April 1971. Additional STRs reflect that the Veteran’s back pain may have been due to a “curvature” of his spine and that he had back pain since he was 8 years old when he fell out of a tree and scoliosis was diagnosed. See STRs dated April 1971 and May 1971. In an April 2013 VA opinion, a VA examiner indicated that there were degenerative changes in the Veteran’s lumbosacral spine and opined that it was less likely than not due to his military service. The VA examiner reasoned, There is no objective evidence of onset of a chronic low back problem in the service. Veteran’s low back problem onset prior to military service. He reported chronic back problems since age eight when he fell from a tree. He was seen in service for acute and transient complaints of low back pain, assessed as strain. He was evaluated, treated and symptoms resolved without chronic sequelae—there is no objective evidence to indicate otherwise for this [V]eteran. There is no evidence that the [V]eteran’s pre-service condition was aggravated by service beyond the normal progression of the condition. There is no evidence of low back problems between 1971 and 2009, over 30 years post-service. During the August 2019 Board hearing, the Veteran testified that he had a neurosurgeon in 2014 inform him that his back disability may be the result of his military service. Pursuant to the November 2019 Board remand, the Veteran underwent VA examination in February 2020. The examiner opined it less likely as not that the Veteran’s low back disability was incurred in or caused during service. As rationale, the examiner stated, [The Veteran] had onset of mild arthritis at 2012 at age 59. Medical science has established that most men in their 50’s develop [degenerative] arthritis as a natural part of aging. [The Veteran] had surgery to treat the pinched nerves in the back at age 63 years old, and after a fall in 2017, had new injury to the back, and has pain there. No nexus to service. [The Veteran] reports pre-existing back pain to examiner. STRs confirm that he had pre-existing back pain. [The Veteran] was only in service for 3 months. He had a strain of his back in service that had [resolved]. [The Veteran] no longer has back strain as his diagnosis. [The Veteran] worked for [decades] after service (he was 18 years old at time of separation), and was not [diagnosed] with strain since [active duty]. At age 59 he had [degenerative] changes in lumbar spine. [Correia] not asked [because] [Veteran] declined physical [examination]. [Medical Opinion]: Veteran’s scoliosis and strain [were] less likely as not aggravated by service. Rationale: Evidence does not find continued increase in these symptoms due to service. Veteran reports to examiner that he had back pain prior to service, and STRs find lumbar strain in service. X-rays taken in service were normal. [Scoliosis] had not been found on imaging in service, or since service. [Veteran] reported in STRs that he had [low back pain] from falling from tree. [Veteran] recalls the fall from tree as a child. He reports that he cannot recall getting back x-rays as a child, since he was 8 years old, almost 60 years ago. [Veteran] reports that he does not recall back pain, if any, from 8 years old. He does recall having back pain “as a child” found by a [doctor] in school, and going to “all kinds of therapy for it” but he thinks it was from “[scoliosis]”. [Veteran’s] fall in service was not an aggravation, rather a new strain that was transitory and temporary. The review of evidence and testimony taken today does not find a chronic lumbar strain since service. [Veteran] had 1 strain prior to service and while in service. He was in service only 3 months, entering at 17 years old. He then worked physical jobs for over 40 years prior to back pain [diagnosed] and finding of early [degenerative] arthritic changes in 2012. No [continuity] of strain, and no [worsening] of his condition in service. [Veteran] has not had [scoliosis] nor strain since service. Upon review, the Board finds probative the findings of the February 2020 VA examiner. The VA examiner opined that the Veteran’s lumbar spine disabilities are not at least as likely as not related to an in-service injury or disease. The rationale was that the Veteran’s lumbar spine pathology did not pre-exist service and was due to the Veteran having worked physical jobs for over 40 years and subsequently suffering from a fall in 2017, not the Veteran’s lumbar strain during service (which has since resolved). The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A review of the private treatment records obtained post-remand do not reveal any evidence that the Veteran’s lumbar spine conditions are related to his service. Treatment records show that the Veteran was not diagnosed as having a lumbar spine disability for decades after his separation from service. Regarding the lumbar spine arthritis, this claim must be denied because symptoms of a lumbar spine disability were not shown during active duty service; lumbar spine arthritis was not manifested within one year of separation from active duty service and there is not competent or credible evidence of record demonstrating a continuity of low back symptoms since separation from service; and the lumbar spine degenerative changes, which appear to have first been confirmed by imaging studies in 2012, are not otherwise shown to be related to any injury or disease during military service. Similarly, service connection for lumbar disc disease must be denied because this disability did not manifest during military service and is not otherwise shown to be related to any injury or disease during military service. Although the Veteran is competent to report having experienced symptoms of back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of an injury during service. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner’s medical nexus opinions. The Board notes that there was nothing noted at entry, so the Veteran was deemed sound at entrance. Further, there is no evidence rebutting the presumption of soundness. The Veteran had a low back strain in service, which the medical evidence shows resolved. The evidence similarly shows that his current back disability is unrelated to the low back strain in service. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against service connection for a lumbar spine disability. As the preponderance of the evidence is against the claim for service connection for a lumbar spine disability, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Acquired Psychiatric Disorder As noted by the Board in the November 2019 remand, VA treatment records reflect diagnoses of generalized anxiety disorder and obsessive-compulsive disorder. See, e.g., VA treatment record dated May 2016. Pursuant to the November 2019 remand, the Veteran underwent VA examination in February 2020. The VA examiner was asked to provide an opinion as to whether it is at least as likely as not that the Veteran’s current acquired psychiatric disability, diagnosed as an anxiety disorder and obsessive-compulsive disorder, had its onset in service, or is otherwise related to service. Upon review, the examiner’s opinion only includes discussion of a diagnosis of adjustment disorder. Because the Veteran had diagnoses of anxiety disorder and obsessive-compulsive disorder during the appeal period, the February 2020 VA examiner needed to address those diagnoses and whether they are accurate or in error. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, an addendum opinion is necessary to address the Veteran’s previous psychiatric diagnoses. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Return the claims file to the February 2020 VA examiner for an addendum opinion concerning the nature and etiology of the Veteran’s psychiatric disabilities. If the examiner is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. a) The examiner is asked to identity all of the Veteran’s current psychiatric diagnoses. The examiner must address any previous post-service psychiatric diagnoses of record, to include anxiety disorder and obsessive-compulsive disorder, and indicate whether those diagnoses were accurate or in error and whether they have since resolved. b) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current acquired psychiatric disability, to include anxiety disorder, obsessive -compulsive disorder, and adjustment disorder, had its onset in service, or is otherwise related to service. (Continued on next page) A detailed medical rationale must be provided for all opinions expressed. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.