Citation Nr: 21011479 Decision Date: 03/02/21 Archive Date: 03/01/21 DOCKET NO. 16-04 168 DATE: March 2, 2021 ORDER Entitlement to service connection for a lower back disability is granted. Entitlement to service connection for an acquired psychiatric disability is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s lower back disability is related to service. 2. The evidence is at least in equipoise as to whether the Veteran’s depressive disorder is related to service; he does not have a confirmed qualifying stressor for PTSD. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for a lower back disability have been met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for an acquired psychiatric disorder, specifically depression, have been met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from April 1978 to April 1982. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2019, at which time the issues currently on appeal were remanded for additional development. 1. Entitlement to service connection for a lower back disability is granted. The Veteran contends that he has a severe low back disability that is related to active service. Specifically, the Veteran reported that he sustained a severe strain to the lower back in maneuvering a F-15 gas hose. He aggravated that injury in November 1980. Since that injury, the Veteran alleges recurrent back issues that have progressively worsened over the years. See, e.g, April 2011 VA spine examination. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). At the outset, the Board notes current diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome, and status post spinal fusion. See, e.g., November 2019 VA examination report. Therefore, the first element of a service connection claim is satisfied. Additionally, service treatment records confirm an in-service injury to the low back requiring hospitalization in November 1980, a light duty profile, and subsequent physical therapy. Thus, the second element of a service connection claim is satisfied. What remains for consideration is whether there is a nexus between the in-service injury and the Veteran’s current low back disability. In this regard, the record contains positive and negative etiological opinions. The opinions against the claim were rendered in April 2011 and November 2019. The April 2011 VA examiner reasoned that the current low back disability is more in keeping with natural age progression. The November 2019 VA examiner reasoned that the condition was “acute only,” citing a lack of treatment for the back between 1980 and 2010. The opinions in support of the claim were rendered in November 2014 and June 2019. The November 2014 private examiner reasoned that the original injury was a torsion injury, which caused the bulging discs seen on MRI in 2010. The June 2019 private examiner reasoned that given the Veteran’s history of back complaints and subsequent lumbar surgical procedures, his back injury as likely as not led to catabolic progressive changes in his spine that triggered early disc degeneration and IVD narrowing seen on the 2010 MRI. The examiner further reasoned that the changes were severe and chronic and nature and less likely to be attributed to recent injury or normal aging process. After careful review of the probative opinion evidence, the Board finds that the positive and negative opinion evidence is in relative equipoise. The opinions were all rendered by qualified medical examiners who reviewed the Veteran’s claims file. Each examiner provided a rationale in support of his or her opinion. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board grants entitlement to service connection for a lower back disability. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for an acquired psychiatric disability is granted. The Veteran contends that he has an acquired psychiatric disability, to include depression and PTSD, caused by his active duty at Holloman Air Force Base (AFB) in New Mexico. He reported that, in working in the capacity of a crew chief between 1979 and 1980, he noticed an oil leak from one of the planes. The Veteran’s supervisor said that was normal, and the Veteran was told to assist in the launching of the plane. The plane crashed into a mountain, killing the pilot. The Veteran blames himself for the airplane accident because he felt he should have stood up for what was right in that situation. The Veteran stated that he assisted in signing off on the launch to placate his immediate superior. After that incident, the Veteran was assigned to another work area. VA has additional requirements regarding the establishment of a PTSD claim. To establish service connection for PTSD, the record must contain: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a), i.e., a diagnosis conforming to specified diagnostic criteria (currently the DSM-5, previously the DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of an alleged in-service stressor for PTSD varies depending on the circumstances of the particular case. The Board notes that the Veteran did not serve in combat. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(1), (2). Further, the Veteran did not serve in an environment involving possible hostile military or terroristic activity, nor does he assert any such stressor. 38 C.F.R. § 3.304 (f)(3). As an initial matter, the Board notes that while the record contains a diagnosis of PTSD (see, e.g., January 2020 VA examination report), the record does not contain evidence sufficient to demonstrate a qualifying stressor, as is required by VA for entitlement to service connection for PTSD based on his reported stressor. VA has been unable to confirm the Veteran’s stressor based on the Veteran’s statements or his service records. An archivist from the U.S. Air Force Historical Research Society reviewed the official unit histories of all flying units located at Holloman AFB in 1979 and 1980, and found two events involving aircraft crashes. The first event involved a mid-air collision of two aircrafts, wherein one pilot was injured, and another pilot returned safely. In the second event, both crew members were ejected from the aircraft safely. There was no mention of any fatalities of aircraft accidents, nor any mention of any aircraft flying into mountains. The Board notes that the circumstances under which VA may accept lay statements alone as evidence corroborating a PTSD stressor are limited and do not apply here. See 38 C.F.R. § 3.304 (f). As such, the Board is unable to award entitlement to service connection for PTSD. Although the evidence of record does not satisfy the criteria required for service connection for PTSD, the Board finds that the evidence demonstrates that the Veteran is entitled to service connection for depression. First, a current disability is established as the Veteran has been diagnosed with depression by multiple medical providers. Second, the Veteran has reported depression during and since service. See, e.g., November 2014 Statement in Support of Claim. Finally, a psychologist attributed the Veteran’s depression to service. In a November 2014 medical opinion, a private psychologist diagnosed the Veteran with persistent depressive disorder with anxious distress in accordance with the DSM-V. After review of the record, the psychologist opined that it is at least as likely as not that the Veteran’s persistent depressive disorder with anxious distress began during service following a back injury and the death of a pilot for which he felt responsible. His depression had worsened over the years due to the deterioration of his back and resulting physical limitations, as well as his pervasive feelings of guilt over the crash. The psychologist further opined that he did not believe the Veteran had PTSD because he never met the pilot of the aircraft that crashed, nor did he see the crash. The psychologist stated that he had every reason to believe the Veteran was giving him the full accounting of his suffering without any attempt to either exaggerate or minimize the toll his psychological symptoms had taken. Given the foregoing, the Board finds that the evidence of record is at least in equipoise that the Veteran’s depression was incurred while on active service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for an acquired psychiatric disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. The Board notes for the Veteran's benefit that all mental disorders, including PTSD and depression, are rated based on the degree of occupational and social impairment resulting from the disorder. 38 C.F.R. § 4.130 (2019). In a strict sense, for compensation purposes it does not matter what mental disorder the Veteran is diagnosed with. Consequently, the Board finds that a full grant of benefits sought on appeal has been awarded. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ivan Franklin 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.