Citation Nr: 21012373 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-33 722 DATE: March 4, 2021 ORDER Entitlement to service connection for a lumbar disorder, to include arthritis and lumbar strain, is denied. Entitlement to service connection for a right hip disorder, to include osteoarthritis, is denied. REMANDED Entitlement to service connection for a skin disorder, to include dermatitis, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder, is remanded. FINDINGS OF FACT 1. The Veteran’s current low back disorder is not related to service and lumbar arthritis was not manifested during the first post-service year. 2. The Veteran’s current right hip disorder is not related to service and osteoarthritis was not manifested during the first post-service year. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar disorder, to include arthritis and lumbar strain, have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right hip disorder, to include osteoarthritis, have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 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 February 1978 to February 1981. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified during a video conference hearing before the undersigned. A transcript of the hearing is of record. In June 2019, the Veteran remanded the case. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, the evidence generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2017). Although these diseases need not be diagnosed within the presumption period, they must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the diseases to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Determinations regarding service connection are based on a review of all the evidence of record, including pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the claimant is afforded the benefit of the doubt. 1. Entitlement to service connection for a lumbar disorder, to include arthritis and lumbar strain. The Veteran contends that his current low back disorder is related to service. During his November 2018 hearing, he reported that he suffered multiple injuries while playing sports during service and he denied having any intercurrent injury. See November 2018 Hearing Transcript. The Veteran’s service treatment records show that he sought treatment in April 1980 for back strain after playing softball. The record also notes it was a soft tissue injury and that he was given a three day profile. The remainder of his service treatment records, including a November 1980 separation medical examination, are silent for low back complaints, findings, or diagnosis. A February 1981 record shows there was no change in his medical state since his separation examination. An August 1987 Reserve enlistment examination is normal and silent regarding a low back problem. See November 2013 STR – Medical. The earliest documented post-service medical evidence regarding his low back is dated in September 2012 when the Veteran complained of having pain all over that included his lower back. See September 2013 CAPRI records. On July 2013 VA examination, he was diagnosed with having lumbar strain, degenerative disc disease, and degenerative joint disease. The arthritis was confirmed by X-rays. See July 2013 CAPRI records. The July 2013 VA examiner offered an unfavorable opinion on the basis that the Veteran was treated for a low back strain in April 1980 and given a three day profile and that there were no documented complaints or treatment thereafter and that more than 30 years had passed since then. See July 2013 CAPRI records. In a November 2018 statement to the Board from the Veteran’s chiropractor, the clinician noted the Veteran first sought treatment in August 2018 for injuries that resulted from a post-service motor vehicle accident. The Veteran reported previous injury from daily activities and carrying heavy equipment while in service. The diagnosis was lumbar segmental dysfunction and an MRI revealed discogenic edema and facet synovitis, and also confirmed his claim of a pre-existing injury. Intervertebral disc desiccation, facet arthrosis and numerous bulges over 2 mm were found throughout the entire lumbar spine. See November 2018 Medical Treatment Record – Non-Government Facility. His chiropractor, however, provided a different perspective one month later in a final evaluation report dated in December 2018. At that time, the chiropractor stated that the Veteran’s symptoms appeared to have come on as a result of a motor vehicle accident consistent with the one described in the report. The Veteran’s history and subjective and objective findings showed evidence, from a medical viewpoint, that his condition was due to the current injury only and no contributing factors were present from pre-existing conditions. See July 2019 Medical Treatment Record – Non-Government Facility. The clinician’s acknowledgement of a pre-existing injury is in conflict with the later statement that the Veteran’s current low back problems were due solely to the motor vehicle accident and that there was no contributing pre-existing injury. This inconsistency greatly weakens the probative value of the clinician’s suggestion that the Veteran’s current low back disorder may be related to a previous in-service injury. The Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). The VA examiner provided a probative opinion supported by a rationale that is consistent with the evidence. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); Monzingo v Shinseki, 26 Vet. App. 97, 106 (2012). As shown by the record and noted by the clinician, the Veteran only had a low back strain in service and there were no further complaints or findings until decades later. The extended period between service and the earliest indication of a low back problem is a factor that weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has not alleged ongoing symptoms, only that he had injuries in service and no intercurrent injury. See November 2018 Hearing Transcript. On the point of no intercurrent injury, his statement is not credible or probative since the record shows that he had back problems due to an August 2018 motor vehicle accident. See Layno v. Brown, 6 Vet. App. 465, 471 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran also reported that records from his employment at the postal service would show aggravation of his back, but he does not note when back problems would have been noted and those records could not be obtained. See December 2012 Correspondence. Thus, there is no basis for finding that he had a post-service back problem prior to when it was documented in a treatment record. The Veteran does have a diagnosis of arthritis, but in the present case it was not diagnosed until decades after service and there is no indication of continuing symptomatology since service. The Board is aware that private treatment records from the Veteran’s primary care physician were destroyed by Hurricane Katrina in 2005, but even with available records after that point there is no evidence of low back complaints for many years. Hence, service connection on a presumptive basis as a chronic disease or based on continuity of symptomatology is not available. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (2013). As the more probative evidence weighs against service connection, a preponderance of the evidence is against the claim. Consequently, service connection is denied. 2. Entitlement to service connection for a right hip disorder, to include osteoarthritis. The Veteran also contends that his current right hip disorder is related to sports-related injuries in service. He stated that he went to sick call a few times and that he “tore off half of his right buttocks/hip area.” It has continued to bother him up until the present. See November 2018 Hearing Transcript. Service treatment records show that in September 1978 he reported diving for a ball while playing football. The clinician noted there were abrasions on the right hip and leg, and he was sent to quarters for 48 hours. He was also treated for football related injuries in November 1978 and September 1979, but these records only noted thigh abrasions; there was no mention of the right hip. The November 1980 separation medical examination and an August 1987 Reserve enlistment examination are silent for right hip complaints, findings, or diagnosis. See November 2013 STR – Medical. The earliest post-service medical evidence of a right hip problem is in August 2012 when the Veteran complained of pain in several areas including his hips that had been an issue for five years. See September 2013 CAPRI records. On July 2013 VA examination, the Veteran again reported having multiple injuries while playing football in the military. The clinician diagnosed right hip osteoarthritis and opined that it was less likely than not related to service. The clinician noted the Veteran had been treated for abrasions in service in September 1978, which was treated conservatively. He was also subsequently treated for thigh abrasions. There were no further documented complaints or treatment for the right hip/thigh area until recently. His current hip condition reflects osteoarthritis, which is not related to abrasion injuries 30 years earlier. See July 2013 CAPRI records. The Board finds the opinion and rationale are probative and sufficient to decide the claim. See Monzingo, supra; Acevedo, supra. The clinician considered the record and examination and offered a rationale for the opinion that is consistent with the record. Although the Veteran has a current diagnosis of right hip arthritis, this was not diagnosed until 2013, which was 31 years after service. The Veteran reported having continuing symptoms since service and while he is competent to report his symptoms, the Board does not find his statement to be credible or probative. See Layno v. Brown, 6 Vet. App. 465, 471 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted, an August 2012 record shows the Veteran reported that his pain had only been an issue for five years. The Board finds that a statement made to a healthcare provider in the course of obtaining treatment is likely more accurate and reliable as the declarant is motivated to provide accurate information, thus, the record is more probative than statements made many years later. Furthermore, during his hearing he described significant injury to the buttocks/hip area whereas the treatment records reflect a much more minor injury. His obvious overstatement as to the severity of his in-service injury also weakens the credibility concerning his right hip disorder. For these reasons, the Board finds that Veteran’s statements regarding continuity of symptoms since service lack credibility. Since there is no evidence of arthritis within the first post-service year or of continuing symptomatology since service, service connection on a presumptive basis as a chronic disease or based on continuing symptomatology is not available. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (2013). The only probative nexus evidence is the VA examiner’s opinion, which is against the claim. In the absence of favorable nexus evidence, the weight of the evidence is against the claim. Since no reasonable doubt exists, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a skin disorder, to include dermatitis is remanded. The Board previously remanded this issue to obtain an opinion that did not dismiss the possibility of an etiology related to service based on the absence of permanent sequela. See July 2013 CAPRI records. The Board finds that the subsequent opinion in May 2020 is inadequate, in part, because not all relevant evidence was considered. The May 2020 examiner noted that there were two complaints of dermatitis in service and no post-service evidence of a rash until a 2013 DBQ, with no findings that day or any episodes in the past year. See May 2020 C&P Exam. The clinician does not appear to have taken into consideration that treatment records prior to 2005 were destroyed in Hurricane Katrina and that the Veteran is competent to report that he has had flare-ups over the years after service. See July 2012 Veterans Application for Compensation or Pension. Furthermore, a September 2005 treatment record notes he had skin problems and June 2010 and August 2011 treatment records contain assessments of dermatitis. See September 2013 Medical Treatment Record – Non-Government Facility and January 2020 Medical Treatment Records – Furnished by SSA. Thus, these records appear to provide some support to the Veteran’s assertion of having intermittent flare-ups and at the very least show skin problems existed prior to 2013. The Board also notes that the claim for a skin disorder is not limited to dermatitis, since service treatment records also show the Veteran was treated for pseudofolliculitis barbae (PFB). Another examination is needed to consider all relevant lay and medical evidence as well as determine the etiology of any current skin disorders. 2. Entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD, is remanded. The Veteran contends that he has PTSD related to service. Although the Veteran’s claim specifically noted PTSD, the Board has considered all other potentially applicable mental health disorders diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran’s private psychologist diagnosed the Veteran with PTSD based on childhood trauma consisting of sexual, emotional, and physical abuse and noted that the Veteran believed this was aggravated by his military service. See November 2018 Medical Treatment Record – Non-Government Facility. The June 2019 Board remand sought a medical finding on whether there was clear and unmistakable evidence that the Veteran’s PTSD pre-existed service; however, the RO’s request was stated in more general terms and only asked if the Veteran had a mental disorder prior to service. The October 2020 response only addressed whether depression pre-existed service. See October 2013 C&P Exam. The Board notes that a VA psychologist previously opined in March 2020 that the Veteran did not meet the DSM-5 criteria for PTSD, but this was based only on reported in-service stressors. See March 2020 C&P Exam. Since the private psychologist found the Veteran has a diagnosis of PTSD based on the childhood stressors, the Board needed an opinion that specifically addressed aggravation of PTSD that was based on the childhood stressors. As the requested opinion was not provided, the matter must be remanded. 3. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder, is remanded. This issue is claimed on a secondary basis, so it is inextricably intertwined with entitlement to service connection for an acquired psychiatric disorder. The matters are REMANDED for the following action: 1. Arrange for an appropriate physician to review the Veteran’s claims file to determine whether the Veteran had pre-existing PTSD that was aggravated during service. If the clinician believes an examination is needed, then one should be scheduled. Based on all the available information, the clinician must address the following: a) It light of the Veteran’s reports of childhood sexual, emotional, and physical abuse, is there clear and unmistakable (i.e., undebatable) evidence that the Veteran had PTSD that pre-existed his active duty? b) If so, is there clear and unmistakable evidence that his pre-existing PTSD was NOT aggravated during his service. c) An explanation of the rationale is needed for each opinion. 2. If it is determined that the Veteran has PTSD that was aggravated during service, then obtain an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his hypertension was (a) caused or (b) aggravated by his PTSD. The clinician is advised that a permanent worsening is not required for aggravation. The clinician must provide an adequate rationale based on a review of the record. 3. Schedule the Veteran for a VA examination to determine whether he has a skin disorder related to service. The examination should be scheduled during the summer, which is when the Veteran reported his disorder is more likely to appear. Based on a review of the record and examination, the clinician must address the following: a) Does the Veteran have a skin disorder, include dermatitis or PFB, that is at least as likely as not (50 percent probability or greater) related to service to includes the complaints noted in service and his exposure to fuel and lubricants in service? • The clinician is advised that treatment records prior to August 2005 were destroyed by Hurricane Katrina and that a September 2005 records indicates skin problems. • The clinician also must consider the Veteran’s statements concerning intermittent flare-ups and self-treatment for his skin disorder. b) Provide an explanation for the rationale that supports the opinion. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.