Citation Nr: 21013363 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-18 640 DATE: March 9, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left leg disability is denied. Entitlement to service connection for a right leg disability is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for peptic ulcer disease is denied is denied. FINDING OF FACT The preponderance of the evidence shows that a back disability, left and right leg disabilities, an acquired psychiatric disorder, and peptic ulcer disease were not present in service or until many years thereafter, are not caused by an injury while serving with a Reserve Component, and they are not related to service or to an incident of service origin, and the acquired psychiatric disorder is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a back disability, left and right leg disabilities, an acquired psychiatric disorder, and peptic ulcer disease have not been met. 38 U.S.C. §§ 101, 106, 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from February 1978 to July 1978. The Veteran also had approximately 4-months of earlier service with a Reserve Component. In January 2013, July 2013, July 2017, and July 2020 Veterans’ Law Judges other than the undersigned Remand the appeal for additional development. As to the post-Remand development, the Board finds that it complied with the Remands. The Board has reached this conclusion because while the appeal was in Remand status the agency of original jurisdiction (AOJ) obtained translation of all needed documents, confirmed that the Veteran’s service and Reserve Component records, including the records he claimed were generated during his hospitalization at Fort Leonard Wood, are not available except for the few records provided by the appellant in May 2008, and the AOJ re-mailed the most recent supplemental statement of the case (SSOC) to the appellant’s new address. See 38 U.S.C. §§ 5103, 5103A; D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Also see correspondence dated in August 2017 and October 2017. The Board apologies for the delays in the full adjudication of this case. The Service Connection Claims The Veteran claims, in substance, that his back disability, left and right leg disabilities, acquired psychiatric disorders, and peptic ulcer disease are due to his military service more than 40 years ago. 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. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and a psychosis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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, 53 (1990). Initially, the record shows the Veteran being diagnosed with degenerative disc disease of the back (see, e.g., VA examination dated in February 2014), left and right leg peripheral neuropathy (see, e.g., VA treatment records dated in January 2008), acquired psychiatric disorders diagnosed as a major depressive disorder and an anxiety disorder (see, e.g., Hospital Del Maestro records dated in April 1997), and peptic ulcer disease (see, e.g., VA treatment records dated in November 2007). The Boards also finds that the Veteran is competent to report on the events he experienced while on active duty like manifestations of his disabilities, such as (for example) pain and lost motion, and his friends are competent to report on what they saw. See Davidson, supra. Next, and as noted above, the Veteran’s service and Reserve Component treatment records are not available except for two pages of records which are negative as to any of the issues on appeal. Where, as here, “service medical records are presumed destroyed, . . . the Board’s obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened.” O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The cases, however, do not establish a heightened “benefit of the doubt,” but rather only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran’s medical records have been destroyed. The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Therefore, adjudication of this claim may go forward without these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the “‘duty to assist’ is not a license for a ‘fishing expedition’ to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim”). As to service connection for the back disability, left and right leg disabilities, an acquired psychiatric disorder, and peptic ulcer disease based on the presumptions found at 38 C.F.R. § 3.309(a), the record does not show any of these disabilities manifesting in the first year following his separation from his period of active duty service. Therefore, the Board finds that these presumptions do not help the Veteran establish service connection for them. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. Next, the Board will consider whether the Veteran is entitled to service connection for a back disability, left and right leg disabilities, an acquired psychiatric disorder, and peptic ulcer disease due to continuity of symptomatology under 38 U.S.C. § 1131; 38 C.F.R. § 3.303(b). In this regard, the post-service record is negative for complaints, diagnoses, or treatment for back problems until 1991 (see, e.g., Teachers Hospital treatment records dated in August 1991), left and right leg disabilities until 2008 (see, e.g., VA treatment records dated in January 2008), an acquired psychiatric disorder until 1989 (see, e.g., Hospital Del Maestro treatment records dated in September 1988; Dr. Domingo Pire examination dated in April 1989), and complaints, diagnoses, or treatment for peptic ulcer disease until 1989 (see, e.g., Hospital Del Maestro records dated in January 1989); over a decade after the Veteran’s 1978 separation from active duty. Id. In this regard, while an April 1990 treatment record from Hospital Del Maestro recorded the Veteran’s claims of having a history of a peptic ulcer 15 years earlier and a September 2008 letter from Lomas Verdes Medical Center reported that he had treated the Veteran since July 1978 and at that that time he had a history of a peptic ulcer, leg pain, and depression, the Board finds that these self-reported histories, standing alone, are not sufficient to document pre-1990 problems with a leg disability, an acquired psychiatric disorder, and/or a peptic ulcer. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (holding that the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion); Also see LeShore v. Brown, 8 Vet. App. 406 (1995). While the Board is certain that the Veteran believes that his back disability, left and right leg disabilities, an acquired psychiatric disorder r, and peptic ulcer disease started during his six months of active duty in 1978 (i.e., over 40 years ago) and continued to the current time, the Board nonetheless finds such claims incredulous given the fact that his problems with the these disorders do not appear in the record until, at the earliest, at least a decade after his 1978 separation from active duty. Therefore, the Board finds that Veteran’s statements and recollections of events from so many years ago are simply not accurate based on the evidence. At this point, the Board finds that the post-active duty medical records provide the most probative evidence of record and it is against finding continuity of symptomatology. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a back disability, left and right leg disabilities, an acquired psychiatric disorder, and peptic ulcer disease in and since his 1978 separation from active duty decades ago despite the claims to the contrary. See 38 U.S.C. § 101, 106, 1131; 38 C.F.R. § 3.303(b). Furthermore, the Board finds that the record does not show that the Veteran’s post-service back disability, left and right leg disabilities, acquired psychiatric disorders, and peptic ulcer disease are due to his military service. See 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). As to the back disability, the Board in reaching this conclusion has not overlooked Dr. Sanchez Longo’s September 2008 statement that the Veteran back pain is due to an injury in service. However, the Board does not find this opinion credible because it is not supported by any rational and because it does not account for the decade plus gap between the Veteran’s 1978 separation from military service and first been seen for complaining of back problems in 1990. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Therefore, the Board finds that it does not provide competent and credible evidence of the Veteran’s post-service back disability being due to an injury while on INACDUTRA and/or a disease or injury while on active duty and/or ACDUTRA. See Owens, supra. On the other hand, the Board finds the February 2014 VA examiner’s opinion that the Veteran’s back disability is not due to his military service both competent and credible. The Board has reached this conclusion because the VA opinion, unlike Dr. Longo’s opinion, is provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by citation to evidence found in the record. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). As to the left and right leg disabilities, the acquired psychiatric disorders, and peptic ulcer disease, the Board notes that the Veteran was not provided VA examinations to obtain etiology opinions. However, given the above record which is negative for complaints, diagnoses, or treatment for any of these disorders until over a decade after his 1978 separation from active duty, the Board finds that the criteria to provide the Veteran with VA examinations have not been met. See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). The Board also finds that neither the Veteran or his friends are competent to provide the missing nexus opinions because they do not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused the current back disability, left and right leg disabilities, acquired psychiatric disorders, and peptic ulcer disease). See Davidson, supra. Similarly, as to Dr. Longo’s September 2008 statement that the Veteran’s depression is due to the pain caused by his back disability, the Board notes that the appellant is not service-connected for a back disability. In fact, the Board notes that the Veteran is not service connected for any disability. Therefore, the Board finds that the Veteran does not meet the criteria for secondary service connection for an acquired psychiatric disorder. See 38 U.S.C. § 1131; 38 C.F.R. § 3.310; also see Allen, supra; Wallin, supra; Ward, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for a back disability, left and right leg disabilities, an acquired psychiatric disorder, and peptic ulcer disease. 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.