Citation Nr: 21008969 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-32 926 DATE: February 18, 2021 ORDER Service connection for an acquired psychiatric disability is granted. Service connection for a neck disability is denied. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s acquired psychiatric disability is associated with active duty service. 2. None of the competent and credible evidence suggests that the Veteran’s neck disability is etiologically related to his military service, and arthritis of the cervical spine was not manifest within one year of separation. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for an award of service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1985 to July 1988. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board remanded the Veteran’s claims for further development. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, for certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for an acquired psychiatric disability The Veteran and his attorney contend that his psychiatric disabilities are etiologically linked to his active duty service as a Marine. For the reasons explained below, the Board agrees. The Veteran has been diagnosed with several psychiatric disabilities, to include bipolar disorder, generalized anxiety disorder with panic attacks, and alcohol use disorder. See, e.g., VA January 2020 mental disorders medical opinion; see also May 2020 Turning Point psychiatric evaluation. Therefore, he has satisfied the first requirement for a grant of service connection. The evidence also demonstrates that the Veteran began drinking heavily during service. See, e.g., June 2013 written correspondence from C.M. Service treatment records include several entries related to the Veteran’s alcohol consumption. In September 1985, the Veteran consumed alcohol and sleeping medications, causing the onset of chemical hepatitis. See September 1986 service treatment record. Several other incidents involving alcohol are documented in the service treatment records. In a January 2015 private medical opinion, the examiner opined that the Veteran developed emotional problems during service, and used alcohol as a means of self-medication and coping. During service, his parents divorced, causing further distress. The examiner opined it is as likely as not that the Veteran’s major depressive disorder began during military service based on a review of the service treatment records, documenting behavioral disturbances. In contrast is the opinion of a January 2020 VA examiner, who opined that the current psychiatric disability is less likely than not related to service, or any incident therein. The examiner noted a lack of documentation of any diagnosable mental illness in service, and disagreed as to the effect that the Veteran’s parents’ divorce would have had on him. The Board finds the evidence is, at least, in equipoise with regard to a nexus between the Veteran’s psychiatric symptoms and his military service. The Veteran’s claim is, therefore, granted. 2. Entitlement to service connection for a neck disability The Veteran has current cervical stenosis, documented, for example, in an October 2011 VA treatment record. Service treatment record do not document complaints, treatment, or diagnoses pertaining to the cervical spine. Records indicate decades after his separation from the military, the Veteran reported an onset of his cervical spine pain. Specifically, he indicated that he was involved in a post-service motor vehicle accident, during which his vertebrae were crushed. See May 2020 psychiatric record. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current cervical spine disability is related to the Veteran’s active military service, or that a chronic disability was incurred in service. The service treatment records are silent for pertinent documentation, and a pertinent disability was not found within one year of separation from service. Rather, the evidence reflects that the current disabilities were not shown until many years after service discharge. The Veteran’s inconsistent reports regarding the onset of his symptoms renders his assertions that they arose in service not credible. that a VA medical opinion has not been obtained addressing the etiology of these disabilities, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Board finds that there is no indication, other than the Veteran's report, of any association between his current cervical spine disability and service. He does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such complex disabilities as cervical stenosis. Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). His statements alone are thus insufficient to warrant a medical examination as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. See, e.g., Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, VA is under no duty to obtain a medical opinion. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. J. Smith Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.