Citation Nr: 21013003 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-28 020A DATE: March 8, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to low back disability, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a low back disability began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran does not currently have an acquired psychiatric disorder that is related to service, to a service-connected disability or that is a superimposed disability on a personality disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 105, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.127. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to January 1971. A Board hearing was held before the undersigned Veterans Law Judge in June 2018; a transcript has been associated with the record. The Board previously remanded these claims in September 2018 and July 2020 for further development. The Board finds that there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of nonservice-connected condition. 38 C.F.R. § 3.310 (a)-(b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Entitlement to service connection for a low back disability The Veteran contends his diagnosed degenerative arthritis of the lumbar spine is related to the fall he sustained in basic training in December 1970. The Veteran has a current diagnosis of arthritis of the lumbar spine as evidenced by the VA examinations as well as clinical records. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, as the Veteran’s active service was less than 90 days, the presumption relating to chronic diseases does not apply. However, service connection for a low back disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s low back disability and an in-service injury, event or disease, to include the December 1970 fall. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In this regard, the Veteran’s service treatment records reflect a December 1970 fall and back injury. The records indicate tenderness and severe pain, but x-rays were negative for any abnormality. The impression was a lumbar spine injury. However, remaining records are silent with respect to any continuing low back problems. The Veteran underwent a Medical Board Proceeding in January 1971 where it was determined that the Veteran had a pre-existing personality disorder and was separated for such condition. The January 1971 Medical Board examination showed that the spine was clinically evaluated as normal. There is no mention of any chronic low back disability at that time. Post-service treatment records show treatment for back pain beginning approximately in October 1988, over 17 years after the Veteran’s discharge from service. At that time, he was diagnosed with a lumbar spine strain. In sum, the post-service medical evidence of record does not show pertinent symptomatology since discharge. While the Veteran is competent to report experiencing symptoms since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with contemporaneous treatment records, which show no reports of back problems at the time of discharge or until many years after service. Moreover, when he first sought treatment in 1988, he did not mention ongoing symptomatology since service. The absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, significantly, records from an August 2011 treatment visit at a private medical facility included the following statement from the Veteran’s treating physician: “I reviewed the patient’s medical record from his service in the army and noted the injuries he sustained to his back in 1970. I believe it is at least as likely as not that these injuries have led in part to his current severely debilitated state.” However, no further rationale of discussion was provided. The Veteran has been afforded VA examinations and opinions November 2011, August 2012 and October 2019, which all found that the Veteran’s low back disability was not related to service. However, these examinations have previously been found to be inadequate for various reasons. Importantly, most recently, the August 2020 VA examiner reviewed the claims file and opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that review of the Veteran's service treatment records reveals that the Veteran was treated for an acute injury on 7 & 8 December 1970 ("fell downstairs"). Radiographic studies performed at that time were negative for fracture as well as degenerative changes. Medical Board examination dated 12 January 1971 is silent for diagnosis of or treatment for any chronic disability with regard to the thoracolumbar spine. Musculoskeletal spinal examination performed at that time was documented as normal. The remainder of the Veteran's service treatment records are silent for continued, chronic treatment of the Veteran's acute injury noted above. The Veteran's diagnosis of acute lumbar strain per orthopedic note dated 8 December 1970 was acute and isolated and resolved without residual as evidenced by silence of the remainder of the Veteran's service treatment records for continued, chronic treatment for diagnosis of chronic lumbar disability. Per review of the Veteran's non-VA medical records, including, but not limited to Social Security determination of disability dated 9 April 1991, the Veteran's current back pain symptoms had their onset after a trip and fall injury while ascending stairs in April 1988, which were aggravated when a refrigerator that was being loaded onto a truck by other individuals fell on the Veteran in December 1988. Non-VA medical records prior to April 1988 are silent for complaints of or evaluation for any symptoms of back pain: while non-VA medical records subsequent to April 1988 injury show a consistent pattern of chronic low back pain symptoms. The examiner reviewed the August 2011 opinion and found that while the opinion presented appears to be carefully considered, the examiner was unable to comment on its validity as no medical literature was cited for reference. Without such reference, the opinion remains his personal, professional opinion. The Veteran was afforded another VA examination in November 2020. This examiner also found that the Veteran’s low back disability was less likely as not incurred in or caused by (the) fall sustained in basic training in December 1970 during service. The examiner rationalized that all available records were reviewed. There was no continuity of care after service. There was a gap in care from 1970 to 1988. The examiner concluded that degenerative arthritis of the spine is a naturally occurring progressive disease of aging. In the February 2021 brief, the Veteran’s representative asserts that service connection should be granted based on the August 2011 private opinion and relies on the fact that the August 2020 VA examiner was unable to comment on its validity. However, the Board finds the August 2011 private opinion to have minimal probative value as the examiner provided no rationale for their finding; and did not discuss the subsequent 1988 injuries or gap between service and post-service treatment. As such, this opinion is outweighed by the August 2020 and November 2020 VA opinions. The August 2020 VA examiner reviewed the August 2011 opinion, but still found that the Veteran’s disability was not related to service and provided a detailed rationale for such finding. Taken together, the August 2020 and November 2020 VA examiners opinions are probative, because they are 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). While the Veteran believes his low back disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus in this case. This issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which shows that the Veteran’s current disability is not related to service. In conclusion, for all the foregoing reasons, the claim for service connection for low back disability is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to low back disability The Veteran also seeks service connection for an acquired psychiatric disability. By way of background, in the Veteran’s Report of Medical History upon entrance, he reported “depression or excessive worry.” However, the October 1970 entrance service examination showed that the Veteran was clinically evaluated as psychiatrically normal. Subsequently, service treatment records show that the Veteran was admitted to the emergency room for an alleged drug overdose. The diagnosis was emotional instability, chronic, severe, manifested by genuine suicide attempt, schizoid traits, withdrawal, depression, low stress tolerance and poor coping mechanisms. The examiner noted that the Veteran’s disability existed prior to service. The Veteran subsequently underwent a Medical Board Proceeding, was found to have a severe personality disorder that existed prior to service and was recommended for discharge. For purposes of this analysis, the Board notes that personality disorders are not “diseases” for which service connection can be granted, and as a matter of law are not compensable disabilities. 38 C.F.R. § 3.303 (c); Beno v. Principi, 3 Vet. App. 439, 441 (1992). However, a disability resulting from a mental disorder superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127. Here, the preponderance of the evidence is against finding that the Veteran has a mental disorder superimposed upon his personality disorder. In this regard, there has been no objective findings that the Veteran’s current psychiatric disability is a superimposed disability upon his personality disorder. Importantly, in response to whether the Veteran had a superimposed psychiatric disability on his personality disorder, the October 2019 VA examiner clearly found that the Veteran’s current depressive disorder was due to his low back disability and that the disorder began after the Veteran’s back injury and is the direct result of efforts to control or cope with the condition. Moreover, the November 2011 VA examiner found that while the Veteran’s personality traits had progressed over time, his personality disorder was not aggravated or exacerbated during service. Although the examiner did not specifically address whether there was a superimposed mental disability, his finding that the disorder was not aggravated also supports the lack of superimposed mental disability. In sum, the Board finds that service connection is not warranted for any personality disorder as there has been no finding of a superimposed mental disorder. However, there is some indication that the Veteran may have had a pre-existing acquired psychiatric disability. In his Report of Medical History upon enlistment in October 1970, the Veteran reported depression or excess worry. However, again, his contemporaneous entrance examination showed that the Veteran was evaluated as psychiatrically normal. The examiner did not diagnose a chronic psychiatric disability. Importantly, a Veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Though depression and excessive worry were noted on his Report of Medical History, the Veteran is presumed sound because there was no notation of a psychiatric disorder on acceptance, examination, or enrollment. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1111; VAOPGCPREC 3-2003. However, in this case, the evidence of record does not clearly and unmistakably show that the Veteran’s had an acquired psychiatric disorder that existed prior to service. In this regard, as discussed above, the medical professionals in service recommended discharge for a preexisting severe personality disorder. There was no finding of a pre-existing acquired psychiatric disorder. Moreover, the October 2019 VA examiner noted that the Veteran described situational depression symptoms prior to service; however, again, there was no finding that the Veteran entered service with a pre-existing acquired chronic psychiatric disability. Further, the examiner attributed the Veteran’s current disability to the onset of his low back disability, which did not occur prior to service. In sum, the evidence does not rise to the level of clear and unmistakable. Thus, the question becomes whether the current disability had its onset during service or is otherwise related to service. Based on the evidence of record, the Board finds that the preponderance of the evidence is against awarding service connection for an acquired psychiatric disorder. On this matter, the Board finds that the October 2019 VA examination to be the most probative evidence of record. The examiner again attributed the Veteran’s depression to his chronic back pain. In so finding, she explained the disorder began subsequent to his back injury and is the direct result of efforts to control or cope with the condition. The Board accords great probative weight to the VA examiner’s opinion, which was based on a thorough review of the record, and reconciled the Veteran’s psychiatric diagnoses with a fully explained rationale. Likewise, the November 2011 VA examiner also found that the claimed condition was not related to service and observed that the Veteran’s current complaints of low mood, depression, chronic pain and insomnia began sometime in the 1980's follow bilateral hip surgery. Further, since entitlement to service connection for low back disability has been denied, it follows that a claim for an acquired psychiatric disorder as secondary low back disability is moot. The Board has carefully reviewed and considered the Veteran’s statements regarding his acquired psychiatric disorder. The Board also acknowledges that the Veteran, in advancing this appeal, believes in the merits of his appeal. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the claim are the most probative evidence with regard to evaluating the disability on appeal. As the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, the benefit of the doubt doctrine is not for application, and the Veteran’s claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.