Citation Nr: 21009830 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-41 355A DATE: February 23, 2021 ORDER Entitlement to service connection for a back disability, diagnosed as degenerative joint disease of the lumbar spine is denied. Entitlement to service connection for heart disease, diagnosed as coronary artery disease status post myocardial infarction and automatic implantable cardioverter defibrillator (AICD) placement is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder not otherwise specified (NOS) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran had a back disability that had its onset in service or was otherwise related to any in-service disease, injury, or event. 2. The preponderance of the evidence is against finding that the Veteran had heart disease that had its onset in service or within one year of separation, or was otherwise related to any in-service disease, injury, or event. 3. The preponderance of the evidence is against finding that the Veteran had an acquired psychiatric disorder that had its onset in service or within one year of separation, or was otherwise related to any in-service disease, injury, or event. CONCLUSIONS OF LAW 1. The criteria for service connection for a back injury have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103(A); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for heart disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103(A); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 3. The criteria for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103(A); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to September 1977, and from January 1991 to June 1991. The Veteran also had service in the Army National Guard. The Veteran died in February 2018. The appellant is the Veteran’s surviving spouse, and she has been accepted as the Veteran’s substitution for purposes of processing this appeal to completion. This matter is on appeal from a November 2013 rating decision. In July 2018, the appellant testified before the undersigned Veterans Law Judge. A transcript of the hearing has been included in the claims file. The Board remanded these claims for further development in October 2018. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include heart disease (to include CAD) may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as heart disease is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. 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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Back Disability The Veteran contended that he was entitled to service connection for a back disability. The Veteran was afforded a VA examination for his back in October 2013. The Veteran was diagnosed degenerative joint disease of the lumbar spine and lumbar spinal fusion surgery of L5-S1. Hence, the first Shedden element, a current diagnosis, has been satisfied. During active duty service, the Veteran underwent a medical examination in March 1991. The examination reflected the Veteran had a lower back strain during service. Hence, the second Shedden element, an incident occurring service, has been satisfied. The final Shedden element requires establishing a causal relationship or nexus between a current diagnosis and an event in service. The October 2013 VA examiner provided an opinion that the Veteran’s degenerative joint disease of the lumbar spine was most likely caused by the herniated disc that occurred after the Veteran’s second period of service. The examiner’s rationale for this opinion was that the Veteran was found to have a herniated disc in 1992, over one year after service, and the record did not show any symptoms of herniated disc in service and only a mild strain prior to active duty. The October 2018 Board decision found this opinion inadequate because in finding that the Veteran had “only a mild strain prior to active duty,” the examiner did not discuss the complaints of left-sided sciatic pain documented in the pre-service February 1990 treatment record. Notably, in the 1992 treatment records leading up to the Veteran’s surgery for a herniated disc, he again complained of left-sided sciatica. In a July 2020 addendum opinion, a VA examiner opined that it was less likely than not that the Veteran’s diagnosed back disability was etiologically related to service. The examiner noted that the Veteran suffered a lumbar strain in 1991, as well as an acute injury in 1990. The Veteran’s separation examination noted a normal spine with notation of lumbar strain and no medications. The Veteran’s report of medical history in 1991 marked “no” to recurrent back pain. The Veteran’s initial evaluation by an orthopedic specialist in July 1992 noted an injury the day prior as a hyperextension injury and noted previous injuries without lasting symptoms. The Veteran tried nonaggressive treatment without resolution of symptoms and therefore an MRI and laminectomy were performed in August 1992. The examiner opined that there is no objective evidence of degenerative arthritis diagnosed during active duty or as a result of active duty and that the Veteran’s lumbar strain was acute with no evidence of continued symptoms at separation. The examiner concluded that a nexus was not established between service and the Veteran’s diagnosed back disability. The Board affords significant probative weight to the conclusions of the July 2020 VA examiner. The rationale regarding etiology was supported by citations to the Veteran’s treatment records that the Veteran’s back strain was resolved by the time he separated from service. The record does not contain an opinion contradicting the conclusion of the VA examiner. Based on this, the Board finds that the final Shedden element has not been established because the record contains no competent evidence linking the Veteran’s back disability to his active duty service. The Board finds that the preponderance of the evidence is against the claim for service connection for a back disability. Because the preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Heart Disease The Veteran contends that he is entitled to service connection for a heart disorder. The Veteran was afforded a VA examination for his heart disease in October 2013. The Veteran was diagnosed with myocardial infarction, coronary artery disease, cardiomyopathy, and implanted automatic implantable cardioverter defibrillator. Accordingly, the first Shedden element has been met. The Veteran reported experiencing stress during active duty service, including as a military policeman in a prisoner of war camp during Operation Desert Storm, that affected his heart. Accordingly, the second Shedden element has been satisfied. The October 2013 examiner opined that the Veteran experienced ischemic heart disease secondary to obesity and elevated cholesterol with diet. The October 2018 board decision found this opinion was inadequate because the opinion only addressed secondary service connection and did not address the Veteran’s second period of active duty service from January 1991 to June 1991. In July 2020, an addendum opinion addressed the etiology of the Veteran’s heart condition. The examiner opined that it was less likely than not that any diagnosed heart condition was related to the Veteran’s active duty service. Specially, the examiner cited the 1991 separation examination reflecting normal chest and lungs and was silent for a diagnosed cardiac condition. The examiner opined that while the Veteran reported stress during service, including in Iraq, coronary artery disease is thought to begin with damage or injury to the inner layer of the coronary artery, sometimes as early as childhood. The examiner continued that the damage may be caused by various factors such as smoking, high blood pressure, high cholesterol, diabetes or insulin resistance, or a sedentary lifestyle. The examiner observed that the Veteran had a history of obesity, a family history of heart disease, and tobacco use. The examiner concluded that a nexus with service had not been established. The Board affords great probative weight to the July 2020 addendum opinion. The examiner reviewed the Veteran’s treatment and service records and concluded that based on the lack of treatment or evidence of heart disease during service, coupled with the Veteran’s hereditary and lifestyle risk factors for heart disease, that a nexus between service and the Veteran’s diagnosed heart disease could not be established. The record contains no competent evidence linking the Veteran’s heart disease to his active duty service. The Board finds that the preponderance of the evidence is against the claim for service connection for heart disease. Because the preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Acquired Psychiatric Disorder The Veteran contended that he was entitled to service connection for an acquired psychiatric condition, to include PTSD. The Veteran was afforded a psychiatric examination in October 2013. The examiner opined that the Veteran did not have a diagnosis of PTSD conforming to DSM-IV criteria. However, the examiner did diagnose the Veteran with a depressive disorder, not otherwise specified. This was the only psychiatric diagnosis made by the examiner. Hence, the first Shedden element for an acquired psychiatric condition has been met. Regarding service connection for PTSD, the October 2013 examiner concluded that the Veteran did not have a PTSD diagnosis. In an October 2018 Board decision, this diagnosis was found to be inadequate because it was unclear if the Veteran had a PTSD diagnosis under the diagnostic criteria of the Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) because the examiner only discussed the DSM-IV diagnostic criteria. Accordingly, an addendum opinion was obtained to clarify the PTSD diagnosis. In July 2020, a VA examiner opined that based on the available evidence, the Veteran did not have a PTSD diagnosis under either DSM-5 or DSM-IV. The examiner noted that while various symptoms of PTSD are endorsed, findings do not support that criterion C for PTSD per DSM-IV or DSM-5 was met, i.e. avoidance of stimuli or situations, events, that remind him or associated with his experience of serving as an MP in a POW prison while deployed to Southwest Asia. Accordingly, based on the lack of a diagnosis of PTSD, service connection for PTSD is denied. While service connection for PTSD is denied, the Veteran was diagnosed with an unspecified depressive disorder. The Veteran’s service record and his own reports reflect that he served in stressful situations, including a POW camp, while deployed in Southwest Asia. Accordingly, the second Shedden element for an acquired psychiatric disorder, other than PTSD, has been satisfied. Regarding the final Shedden element, a nexus has not been established. The Veteran was afforded a VA examination in October 2013. The only symptoms noted that applied to the Veteran’s psychiatric diagnosis were depressed mood and chronic sleep impairment. The examiner noted the Veteran did not meet the criteria for a PTSD diagnosis but did not offer an opinion regarding the etiology of his Unspecified Depressive Disorder. July 2020 VA examiner opined it was less likely than not that the Veteran’s depressive disorder was related to service. The examiner noted given the Veteran’s multiple psychosocial stressors to include childhood trauma, familial issues including physical abuse prior to service, financial problems, and expressed concerns over his diabetes, chronic pain, and heart related issues, it is less likely than not that Veteran’s Unspecified Depressive Disorder was attributed to his military service. The Board observes that no competent evidence contained in the evidence file, such as a medical opinion from a qualified professional, supports a finding that there was an etiological relationship between the Veteran’s active duty service and his diagnosed Unspecified Depressive Disorder. The record does not contain evidence of any other acquired psychiatric conditions during the Veteran’s life. Accordingly, the Board finds that a nexus between the Veteran’s active duty service and his Unspecified Depressive Disorder has not been established. The Board finds that the preponderance of the evidence is against the claim for service connection for heart disease. Because the preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Keogh, 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.