Citation Nr: 21013934 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 12-25 251 DATE: March 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is denied. Entitlement to service connection for a back disorder is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD that is linked to combat, fear of hostile military or terrorist activity, or a verified in-service personal assault. 2. The Veteran does not have a current acquired psychiatric disability other than PTSD that is due to service. 3. The Veteran's low back disorder is not causally or etiologically due to service and did not have an onset within one year of discharge from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1112, 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 May 1949 to October 1952. The Appellant is the Veteran's surviving spouse. The Board notes that in December 2018, the Appellant filed a claim for substitution of party. In July 2020, she was substituted for the Veteran in the pending claim, enabling her to proceed in the place of the Veteran to the completion of the original claim. See U.S.C. § 5121A(a)(1). By way of history, these matters are before the Board of Veterans' Appeals (Board) on appeal from June 2011 and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2015. A transcript of the hearing is associated with the electronic claims file. The Board issued prior remands on these claims in August 2015 and August 2017. The August 2017 remand directives having been substantially complied with; the matter is now before the Board again. D'Aries v. Peake, 22Vet. App. 97, 105 (2008); Stegall v. West, 11Vet. App. 268, 271 (1998). Service Connection Generally, to establish service connection 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases, such as arthritis, if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As an initial matter, the Board must note that in an October 2010 VA 21-3101 Request for Information, the RO received a response that the Veteran's service records are “fire-related,” and therefore, presumed to have been destroyed in the fire that occurred at the National Personnel Records Center in 1973. The Board recognizes that, in such cases where service records are missing, there is a heightened obligation to assist the Veteran in the development of his case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases in which records are presumed to have been, or in actuality were, lost or destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. The Veteran has claimed entitlement to service connection for an acquired psychiatric disability. The Veteran contends that he has PTSD, or another acquired psychiatric disability that is due to atomic testing on Eniwetok Island during Operation Greenhouse. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). Generally, the evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether a veteran engaged in combat with the enemy. See Gaines v. West, 11 Vet. App. 353, 358 (1998); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). Service department evidence that the veteran engaged in combat or that a veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 C.F.R. § 3.304(f). In the case at hand, the Veteran's service personnel records do not contain evidence, including awards or decorations, enough to establish that he engaged in combat with the enemy as defined by the relevant regulations. The record reflects he was stationed on Eniwetok Island during atomic testing for Operation Greenhouse. However, the Veteran is not entitled to the presumption that attaches for veterans who have "engaged in combat with the enemy." For a veteran who is not determined to have "engaged in combat with the enemy," if the claimed stressor is related to a veteran's fear of hostile military or terrorist activity, in the absence of clear and convincing evidence to the contrary, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. In such cases, service connection may be granted if (1) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD; and (2) the veteran's symptoms have been medically related to the claimed stressor. See 38 C.F.R. § 3.304(f)(3). Such determinations must be made by mental health professionals who are qualified to perform initial Compensation and Pension (C&P) examinations. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39843, 39846-47 (July 13, 2010). In the case at hand, the Veteran's service personnel records, treatment records, or lay testimony do not contain any incidents of or reports of having experienced in-service stressors that are related to his fear of hostile military activity. Generally, when the claimed stressors do not fit into one of the above two categories (combat-related or related to fear of hostile military or terrorist activity), a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If a PTSD claim is based on an in-service personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Specifically, 38 C.F.R. § 3.304(f)(5), allows Veterans claiming PTSD from an in-service military assault to submit evidence other than in-service medical records to corroborate the occurrence of a stressor, and this includes medical opinion evidence. Menegassi, 638 F.3d at 1382; see also 67 Fed. Reg. 10,330, 10,330-31 (Mar. 7, 2002). Due to the sensitive nature of in-service personal assaults, VA is aware that such incidents frequently go unreported and therefore cannot be confirmed by review of a Veteran's service treatment records. As such, the Code of Federal Regulations specifically addresses methods of verifying such a stressor. If a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5). In the case at hand, the Veteran's service personnel records, treatment records, or lay testimony do not contain any incidents of or reports of having experienced in-service personal assaults. In a February 2016 VA treatment note, the Veteran was screened positive for PTSD. While the Veteran screened positive for PTSD, he was not medically diagnosed with PTSD. In a November 2016 VA examination, the examiner noted the Veteran does not meet DSM-5 criteria for a diagnosis of PTSD given reported lack of requisite Criterion A, B, C, D, & E symptoms. The Veteran meets current criteria for a diagnosis of Persistent Depressive Disorder which is consistent with his self-report on the Beck Depression Inventory-II (BDI-II). In an October 2017 VA examination, the examiner noted “based on both his and his wife's self-report, veteran continues to meet DSM-5 criteria for a diagnosis of Persistent Depressive Disorder.” In short, the Board finds that the record does not persuasively establish the presence of a current PTSD diagnosis based on combat service, fear of hostile military or terrorist activity, or a corroborated personal assault. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim of entitlement to service connection for PTSD must be denied. The Board has also considered whether entitlement to service connection for another psychiatric disability other than PTSD may be warranted. The record reflects that the Veteran has current diagnoses of persistent depressive disorder and major depressive disorder, recurrent, moderate (in March 2017 VA treatment note). The November 2016 VA examiner noted a diagnosis of persistent depressive disorder and that "although vet and his wife report onset of depression symptoms in the service, writer is unable to opine as to whether the diagnosis is the result of his military service without resorting to mere speculation given the lack of service treatment records documenting depression symptoms or mental health treatment while in the military.” The October 2017 VA examiner noted a continuation for a diagnosis of persistent depressive disorder and that the Veteran reports that symptoms of depression began during his service time, when stationed on Eniwetok Atoll. The Veteran met his wife while in the Army, where she reports that he "didn't laugh a lot when we met". Although the Veteran's wife described her husband as a persistently depressed man, the Veteran's wife did not know her husband prior to the service and is not able to comment as to the presence or absence of any marked mood changes before and after he joined the service. The examiner also noted although it has been acknowledged that lack of service treatment records are fire-related, the Veteran stated that he never reported or described problems of depression while he was in the service, so documentation of mental health concerns would not have existed regardless. Additionally, he did not seek any mental health treatment until the age of 60 years old (over 40 years after reported depression onset). Finally, the Veteran's wife noted the presence of current psychosocial stressors that are negatively impacting the Veteran's mood, notably their daughter is currently suffering from liver failure. The examiner opined that given the long lapse of time between reported onset of depression and the current disability evaluation (i.e., 68 years) in addition to the lack of any mental health records, either military (which the Veteran admits would not have existed regardless of the fire that destroyed his files) or post-military clearly establishing a pattern of depressed mood over the last 7 decades, it is not possible to determine or opine as to the etiology of the Veteran's depression without resorting to mere speculation. The Board finds these opinions to be highly probative, as they were authored by clinical psychologists who possess the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). These opinions are based on review of the record and interview, examination, and diagnostic testing of the Veteran. Their opinions are accompanied by detailed rationales that discuss the facts of the Veteran's case and pertinent medical principles. For these reasons, the Board finds the November 2016 and October 2017 VA examination reports to be highly probative. Indeed, these opinions were rendered by experts with knowledge and skill in analyzing the data in an area within their expertise and reflect familiarity with the pertinent medical and lay history. It is indisputable that the medical experts were fully cognizant of the questions before them. They were unable to provide a credible nexus between the Veteran's current mental health issues and his military service. The only contrary opinion comes from the Veteran and the Appellant. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim, including the linking of current psychiatric disabilities to service that occurred more than 60 years earlier, are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. In short, the Board finds that the evidence does not persuasively establish that the Veteran has a current acquired psychiatric disability, to include PTSD, major depressive disorder, and persistent depressive disorder, that is due to service. For the foregoing reasons, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD and depression, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. 4. Entitlement to service connection for a back disorder VA treatment records show the Veteran complained of back pain in January 2011. The Veteran was diagnosed at his December 2016 VA examination with degenerative arthritis of the spine. The Veteran contends he injured his back in service while unloading 100-pound sacks and pallets of cement, while stationed on Eniwetok Island. In a December 2016 VA examination report, the examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that “during service, condition was acute only. There is no evidence of chronicity of care. A nexus has not been established.” In a November 2017 VA examination report, the examiner explained that turning to the active duty records, it is understood that many records were lost in the fire-related event thereby unavailable for review. However, the October 1952 separation report of medical examination was available for review in the E-folder. The clinical evaluation was negative for subjective complaints and/or objective medically and/or orthopedically based, clinical evidence to support chronicity and/or continuity of a back condition. Clinically, the lower extremity, spine and/or other musculoskeletal and/or neurologic examinations were normal. Therefore, and with consideration for the Veteran’s lay statements, it is at least as likely as not that the Veteran’s claimed active duty back conditional related to an acute, transient and self-limited event (s) because of the lack of chronicity and continuity at separation. And for these same reasons, it is less likely than not that the Veteran’s currently claimed back disability relates to military service. The examiner further explained that during the presumptive period, the Veteran was treated at medical facilities in 1953 and 1959. The events were negative for subjective complaints and/or objective medically and/or orthopedically based, clinical evidence to support chronicity and/or continuity of a back condition. The examiner opined that for these reasons, it is less likely than not that the Veteran’s currently claimed back disability relates to and/or was aggravated by military service and/or that any currently diagnosed back disorder manifested in or is otherwise related to the Veteran’s military service, including his assertion of repetitive lifting, loading, and unloading of cement sacks and palettes from ships during his assignment at Eniwetok Atoll. The examiner finally explained that the Veteran’s past medical history includes diabetes mellitus, Type II, hypertension, hyperlipidemia, renal insufficiency, and depression. The records were negative for subjective complaints and/or objective medically and/or orthopedically based, clinical evidence to support chronicity and/or continuity of a back condition. A July 2010 Poteau Indian Clinic/Rubin White Choctaw Nation medical note observed a normal musculoskeletal examination. Moreover, the presentation was negative for subjective complaints of a back condition. The examiner stated that in accordance with the November 2016 PTSD C&P examination, the Veteran worked as a self-employed barber throughout his post service period of employment. The Veteran retired due to chronic back pain. The examiner opined that it is at least as likely as not that the Veteran’s post service occupation, barber, related to and caused his back condition because the occupation demands long periods of standing, turning and twisting each day that attribute to an increase stress and strain on the low back and spinal column. The examiner stated that in retrospect, on August 7, 2012, the Veteran carried a diagnosis of chronic low back pain. The examiner opined that it is at least as likely as not that the Veteran carried a diagnosis of low back condition approximately 59 years following separation. The examiner noted the Veteran’s report of surgery in 1960 and a September 2010 VA treatment note indicating back surgery in 1993. However, the E-folder and VA medical and orthopedic records did not include pre, intra-operative and/or post-surgical notes. Therefore, it would be mere speculation to assume the on-set, cause, level and degree of injury and/or surgical procedure without objective orthopedically and/or medically-based, clinical evidence to support surgical intervention and/or diagnosis related to chronicity and continuity of a back condition, thereof. Thus, no comment is warranted. The examiner opined that for these reasons, and with consideration of all post-service subjective statements and objective finding, it is less likely than not that the Veteran’s diagnosed back disorder manifested in or is otherwise related to the Veteran’s military service, including his repetitive lifting, loading and/or unloading of cement sacks and palettes from ships during his assignment at the Eniwetok Atoll but rather a consequence of his post service occupation and life style. The examiner further opined that with consideration of the Veteran’s lay statements and objective medically and orthopedically based, clinical evidence, it is less likely than not that the Veteran’s claimed back disability related to and/or had the likelihood that injuries such as those described by the Veteran could have caused the Veteran’s current back condition. The Board finds the VA opinion highly probative because the examiner had the appropriate training, expertise and knowledge to evaluate the claimed disorder. The examiner also reviewed the records, performed a clinical examination, and considered the Veteran's statements regarding the nature and history of his condition. There are no other probative medical opinions of record. Furthermore, the Board finds that the Veteran's current low back disorder did not have an onset within one year of discharge from service. The Veteran was discharged from service in October 1952. As noted above, the Veteran's separation examination in October 1952 was negative for any back issues. The earliest objective evidence of his lumbar spine arthritis is from 2013, more than 60 years after service. As such, the Board finds that the evidence does not persuasively indicate the Veteran's current lumbar spine disorder had an onset within one year of discharge from service. There is also no persuasive credible lay evidence that the Veteran's claimed disorder had its onset in service and continued ever since service. The evidence in support of the claim consists solely of the Veteran's reports. While he is certainly competent to report his symptoms and history, his reports must be weighed against the additional evidence of record. Jandreau, 492 F.3d at 1377; Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). At separation, no spine abnormalities or disorders were identified by the examining clinician in October 1952. This physical examination report is highly suggestive that the Veteran did not have a chronic low back disorder in service. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (silence within records is pertinent evidence when records would typically document the event); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Furthermore, as stated previously, there is no objective evidence of low back symptoms or treatment for more than 60 years after service, even considering the Veteran's asserted surgery in 1993. The Board has considered the Veteran's own statements regarding the nature and etiology of his disorder. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss pain and other symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In the present case, however, the Board finds that the Veteran's lay statements are outweighed by the post-service treatment records. Further, the Veteran is not competent to diagnose any low back disorder or render an opinion as to the cause or etiology of any current low back disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Accordingly, though the Veteran is competent to report his symptoms, he is not competent to provide an opinion as to nature and etiology in a case involving complex medical facts. For the foregoing reasons, the Board finds that service connection for a back disorder, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edwin B. Esmenda, 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.