Citation Nr: 21014801 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-30 160 DATE: March 15, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a lumbar spine disability is denied. Service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to service connection for a lung disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a cervical spine disability that began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran has a lumbar spine disability that began during active service or is otherwise related to an in-service injury or disease. 3. Resolving reasonable doubt in the Veteran’s favor, his acquired psychiatric disability is at least as likely as not related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1973, followed by a period of service in both the Army Reserves and the Navy Reserves. During his period of service in the Naval Reserves, the Veteran was called to active duty from September 1990 to May 1991. On appeal is an October 2014 rating decision that granted service connection for hearing loss and tinnitus, but denied service connection for 6 conditions: arthritis of the upper spine (now characterized as a cervical spine disability); arthritis of the lower spine (now characterized as a lumbar spine disability); lung disease (now characterized as a lung disability); anxiety; depression; and, PTSD (all three psychiatric issues are now characterized as an acquired psychiatric disability). The Veteran timely appealed the denial of his service connection claims. When this matter was initially before the Board of Veterans’ Appeals (Board) in January 2019, the Board remanded the issues for additional development, to include obtaining VA examinations. The additional development has been obtained and the matter returned to the Board for appellate review. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In addition, certain chronic diseases, such as arthritis, 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, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for a cervical spine disability. The Veteran seeks service connection for a cervical spine disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his cervical spine disability. The Veteran’s service treatment records are associated with his claims file. These records are silent for any complaint, diagnosis or treatment of a cervical spine or neck disorder. The August 1973 Report of Medical Examination (exit exam for 1st period of active duty) reflects the Veteran had a normal spine examination with no defects or diagnoses noted related to the cervical spine (the only defect noted in the written report was defective vision). The April 1991 Report of Medical Examination (exit exam for the 2nd period of active duty) reflects the Veteran had a normal spine examination, with the only defect noted related to vision. The companion April 1991 Report of Medical History reflects the Veteran stated that he was in “good health;” not on medication; and, he specifically denied having arthritis; bone, joint or other deformity; recurrent back pain; and neuritis. In the physician’s summary it is noted the Veteran had no significant interval history. Because the Veteran served in the Reserves, additional service treatment records are associated with the Veteran’s claims file. Report of Medical Examination(s) dated in October 1986, June 1987, May 1988, and July 1989, each reflect the Veteran had a normal spine examination with no cervical defect or diagnoses noted. The latest exam of record, a March 1996 “Quinquennial” Report of Medical Examination reflects a normal spine examination. In the companion March 1996 Report of Medical History, the Veteran stated he was in excellent health, on no medication, and had no complaints. He specifically denied having arthritis; bone, joint or other deformity; recurrent back pain; and, neuritis. The Veteran’s post service VA treatment records from the Oklahoma City VAMC are associated with his claims file. These records are silent for complaint, diagnosis or treatment of a cervical spine disorder. In a January 2014 Gulf War Registry Examination, the Veteran stated he hurt his back moving wooden pallets and was moved from his job, but he did not see a doctor. There was no mention of a neck injury or diagnosis – only his back. Upon examination, his cervical spine was normal. The Veteran underwent a VA examination in July 2020. The examiner noted a current diagnosis of degenerative arthritis of the spine. The examiner also noted that the Veteran reported he is not sure when his neck pain began; that he believes it happened in the 90’s while working out; that he was never seen for his cervical spine while in the service; and, that he denies care while in the military. The examiner opined that the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner stated a review of the claims file does not show a cervical neck condition while in the service. Veteran denies a specific injury or complaints of pain while in the service. Radiological assessment shows degenerative changes which are age appropriate. There is no continuity or chronicity of care to show a chronic cervical spine condition related to service. It is less likely than not there is a chronic cervical spine condition related to service. Nexus cannot be established. The examiner also addressed the Board’s January 2019 Board Remand directive by specifically addressing the Veteran’s statement that he was lifting pallets of equipment and injured his lower back during service. The examiner said there is no mention of neck pain from lifting a pallet. The Veteran did not seek medical care. His supervisor gave him some light duty due to the lower back pain for 2-3 days and the Veteran returned to normal duties after. Condition was acute and resolved. Presumptive Service Connection The Veteran has a current diagnosis of degenerative arthritis of the cervical spine. Arthritis is an enumerated condition under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. The Board finds, however, that the Veteran’s cervical spine disorder was not shown as chronic since service and did not manifest to a compensable degree within the presumptive period of one year. VA and private treatment records show the Veteran was not diagnosed with degenerative arthritis of the lumbar spine until 2020, over 25 years after his separation from service and outside of the applicable presumptive period. Thus, entitlement to service connection for a cervical spine disability on a presumptive basis, or on the basis of continuity of symptomatology since service that is attributable to a chronic disease, is denied. Direct Service Connection In light of the above, the Board also concludes that service connection is not warranted for a cervical spine disability on a direct basis either. Here, there is simply no competent evidence of record to suggest that the Veteran has a cervical spine disability that is in any way related to his time on active duty. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of evidence linking the Veteran’s claimed cervical spine disability to his military service. The Veteran’s service treatment records make clear that he did not have a complaint, diagnosis or treatment of a cervical spine disability. Moreover, because the Veteran’s post-service treatment records, including records from his service in the Reserves, are associated with his file, the Board finds it significant that the Veteran’s first diagnosis of cervical spine arthritis was not documented until the July 2020 VA examination, over 25 years after his separation from active service in May 1991. In addition, the examiner attributed the cervical spine arthritis to the Veteran’s age. In this case, the only evidence in favor of the Veteran’s claim is his own statements concerning his belief that his claimed cervical spine disability is due to service. With regard to the Veteran’s contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report symptoms of a cervical spine disability such as neck pain, the claimed disability is not the type of condition that is amenable to lay determination regarding its etiology, as specific findings are needed to properly determine etiology. Id.; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, the Board finds that, other than the Veteran’s unsupported contentions, there is simply no evidence in the record of any etiological relationship between the Veteran’s claimed cervical spine disability and his time in service. Thus, the criteria for service connection for a cervical spine disability have not been met. The evidence weighs against the Veteran’s claim. Service connection for a cervical spine disability must be denied. 2. Entitlement to service connection for a lumbar spine disability. The Veteran seeks service connection for a lumbar spine disability. More specifically, the Veteran claims that he was lifting pallets of equipment and injured his lower back during his active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his lumbar spine disability. The Veteran’s service treatment records are associated with his claims file. These records are silent for any complaint, diagnosis or treatment of a lumbar spine or back disorder. The August 1973 Report of Medical Examination (exit exam for 1st period of active duty) reflects the Veteran had a normal spine examination with no defects or diagnoses noted (the only defect noted in the written report was defective vision). The April 1991 Report of Medical Examination (exit exam for the 2nd period of active duty) reflects the Veteran had a normal spine examination, with the only defect noted related to vision. The companion April 1991 Report of Medical History reflects the Veteran stated that he was in “good health;” not on medication; and, he specifically denied having recurrent back pain. In the physician’s summary it is noted the Veteran had no significant interval history. Because the Veteran served in the Reserves, additional service treatment records are associated with the Veteran’s claims file. Report of Medical Examination(s) dated in October 1986, June 1987, May 1988, and July 1989, each reflect the Veteran had a normal spine examination with no defect or diagnoses noted as it relates to his spine or back. The latest exam of record, a March 1996 “Quinquennial” Report of Medical Examination reflects a normal spine examination. In the companion March 1996 Report of Medical History, the Veteran stated he was in excellent health, on no mediation, and had no complaints. Again, he specifically denied having recurrent back pain. The Veteran’s post service VA treatment records from the Oklahoma City VAMC are associated with his claims file. These records show the Veteran had been diagnosed with degenerative disc disease and received treatment over the years. A March 2007 MRI revealed that the Veteran had multilevel degenerative disc disease as well as a Grade I spondylolytic spondylolisthesis L5 on S1. A January 2011 record reflects possible left L5 spondylolysis. A March 2011 record reflects a diagnosis of degenerative disc disease seen at the L4-5 level. A July 2011 record reflects a diagnosis of mild thoracolumbar scoliosis concaved to the right with no other significant abnormalities. In a January 2014 Gulf War Registry Examination, the Veteran stated he hurt his back moving wooden pallets and was moved from his job, but he did not see a doctor. Upon examination, he was diagnosed with L5 spondylolysis with spondylolisthesis. No nexus opinion was provided. The Veteran underwent a VA examination in July 2020. The examiner noted a current diagnosis of degenerative arthritis of the spine. The examiner also noted that the Veteran reported he was in Saudi Arabia and was pushing pallets around as a storekeeper while deployed. He stated he injured his back by lifting the pallets and was put on light duty for a couple of days. He denies seeking medical assistance at the time and stated he returned to his normal duties after 3 days. The Veteran stated further that when he came back to the U.S. he was seen by his PCP [primary care physician] for his back and was also seen by a chiropractor of his own choice, every day for about 2 weeks. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated a review of the claims file does not show objective evidence of a chronic back condition or injury while in the service. The Veteran gave information today regarding picking up pallets while being deployed and stated he did not seek medical care. His supervisor gave him some light duty for 2-3 days and he returned to full duty following those days. This was an acute injury and resolved. There is no continuity or chronicity of care for over 2 decades to show a chronic back injury due to service. Today’s exam shows degenerative changes of the lumbar spine which is related to aging. It is less likely than not there is a chronic back condition related to service. Nexus cannot be established. Presumptive Service Connection The Veteran has a current diagnosis of degenerative arthritis of the lumbar spine. Arthritis is an enumerated condition under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. The Board finds, however, that the Veteran’s lumbar spine disorder was not shown as chronic since service and did not manifest to a compensable degree within the presumptive period of one year. VA and private treatment records show the Veteran was not diagnosed with degenerative arthritis of the lumbar spine until 2011, approximately 20 years after his separation from service and outside of the applicable presumptive period. An MRI in 2007 first noted degenerative changes. Thus, entitlement to service connection for a lumbar spine disability on a presumptive basis, or on the basis of continuity of symptomatology since service that is attributable to a chronic disease, is denied. Direct Service Connection In light of the above, the Board also concludes that service connection is not warranted for a lumbar spine disability on a direct basis. There is simply no competent evidence of record to suggest that the Veteran has a lumbar spine disability that is in any way related to his time on active duty. None of the Veteran’s treatment providers have opined that his lumbar spine disability is related to his active service. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of evidence linking the Veteran’s claimed lumbar spine disability to his military service. The Veteran’s service treatment records, which extend well past his active duty service since the Veteran served in the Reserves, make clear that he did not have a complaint, diagnosis or treatment of a lumbar spine disability during any of his active or Reserve time, as he specifically denied recurrent back pain in each of the Report(s) of Medical History associated with his claims file. Moreover, because the Veteran’s post-service VA treatment records from the Oklahoma VAMC are associated with his claims file, the Board finds it significant that the Veteran’s first diagnosis of lumbar spine arthritis was not documented until 2007, over 16 years after his separation from active service in May 1991. Lastly, the Board notes that the July 2020 VA examiner attributed the Veteran’s lumbar spine arthritis to his age. In this case, the only evidence in favor of the Veteran’s claim is his own statements concerning his belief that his claimed lumbar spine disability is due to service. With regard to the Veteran’s contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report symptoms of a lumbar spine disability such as lower back pain, the claimed disability is not the type of condition that is amenable to lay determination regarding its etiology, as specific findings are needed to properly determine etiology. Id.; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, the Board finds that, other than the Veteran’s unsupported contentions, there is simply no evidence in the record of any etiological relationship between the Veteran’s claimed lumbar spine disability and his time in active duty service. Thus, the criteria for service connection for a lumbar spine disability have not been met. The evidence weighs against the Veteran’s claim. Service connection for a lumbar spine disability must be denied. 3. Entitlement to service connection for an acquired psychiatric disability, to include anxiety, depression and PTSD. The Veteran contends that he has an acquired psychiatric disorder, to include anxiety, depression and PTSD, that is related to his military service. More specifically, the Veteran has reported 5 different stressors. First, he claims that he worked trauma cases as a medic in the Navy where he saw many physically maimed and disabled men and women while working on the wards. He states he thinks of them constantly and have continued bad dreams about all that he saw. Second, the Veteran has stated he was on flight duty aboard a ship, and resting on the rails, when a group of people came behind him, grabbed him, and held him over the side of the ship before pulling him back up. Third, the Veteran reported his closest buddy, C.H., was playing pool; that the Veteran is normally with him but wasn’t there that night; that a guy beat his friend to death; and, that when the Veteran saw his buddy in the Emergency Room his head was swollen from the beating to his head. The Veteran stated it bothers him to this day to see his buddy black and blue, and swollen. Fourth, the Veteran stated he served for 1 year in the Persian Gulf region and was there for Operation Desert Storm. He states there were times that he could not sleep at night because he was afraid due to enemy bombs coming in or other things they were hearing about the War. Fifth, the Veteran stated he was stabbed in left hand when a drunk person came into barracks. He states he was also hit in the face as he was getting up and knocked partial unconscious. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has an acquired psychiatric disability that is a result of his military service. The Veteran’s DD-214 reflects the Veteran was a medical service tech during his first tour of active duty. The Veteran’s service treatment records are associated with his claims file. These records are silent for any complaint, diagnosis or treatment of a psychiatric disorder. The August 1973 Report of Medical Examination (exit exam for 1st period of active duty) reflects the Veteran had a normal psychiatric. The April 1991 Report of Medical Examination (exit exam for the 2nd period of active duty) reflects the Veteran had a normal psychiatric examination. The companion April 1991 Report of Medical History reflects the Veteran stated that he was in “good health;” not on medication; and, he specifically denied depression, excessive worry, and nervous trouble of any sort. Because the Veteran served in the Reserves, additional service treatment records are associated with the Veteran’s claims file. Report of Medical Examination(s) dated in October 1986, June 1987, May 1988, and July 1989, each reflect the Veteran had a normal psychiatric examination. The latest exam of record, a March 1996 “Quinquennial” Report of Medical Examination reflects a normal psychiatric examination. The Veteran underwent a private Disability Benefits Questionnaire (DBQ) in January 2017. The examiner diagnosed the Veteran with PTSD and Major Depression. However, no nexus opinion was provided. The Veteran underwent a VA examination in July 2020. The examiner opined that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated the Veteran experienced multiple, continuing traumas from different sources, while in the service, all contributing to his chronic PTSD and chronic depression. His Major Depressive Disorder is the continuing result of his PTSD. In addition, the examiner stated the Veteran is also service connected for hearing loss and tinnitus, which has more likely than not (50% or greater probability) contributed to the worsening of his depression as he has aged. In light of the above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. It appears at least one of the Veteran’s stressors (his duties as a medic) is supported by the record as his DD-214 confirms the Veteran’s MOS was a medical service tech. In addition, the Board finds probative the opinion of the July 2020 VA examiner, that the Veteran’s acquired psychiatric disability is related to his military service directly and also as secondary to his service-connected hearing loss and tinnitus. As such, the Board finds that service connection for an acquired psychiatric disability is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a lung disability is remanded. As noted in the January 2019 Board Remand, the Veteran has asserted three alternating theories for his claim of service connection for a lung disability: (1) that his lung disability resulted from asbestos exposure from his service aboard a ship deployed to the Mediterranean Sea; (2) that his lung disability resulted from his later deployment to Saudi Arabia and Bahrain during Operation Desert Shield/Operation Desert Storm; or, (3) that his lung disability resulted from his service at Camp Lejeune both before boarding ship and again at the time of his separation from service in 1973. However, the June 2015 VA medical opinion addressed only the first theory of entitlement (whether the Veteran’s lung disability resulted from asbestos exposure) without address the remaining two theories (whether the Veteran’s lung disability resulted from the Veteran’s service in the Persian Gulf or from his service at Camp Lejeune). As such, the Board remanded to obtain an opinion that addressed all of the Veteran’s theories of entitlement. A new VA examination was obtained in July 2020. However, the examiner did not specifically address the Veteran’s deployment in Saudi Arabia and Camp Lejeune as directed in Board remand. As such, the Board finds the July 2020 opinion to be inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A remand by the Board confers on the claimant a legal right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. The matter is REMANDED for the following action: Forward the Veteran’s claims folder to an examiner for an addendum opinion to determine the nature and etiology of any lung disability, and to obtain an opinion as to whether such is related to service. The claim file should be reviewed by the examiner. All necessary tests should be conducted, and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability of the lung is related to an in-service injury, event, or disease. The examiner is asked to specifically address whether the pulmonary nodules resulted from an infectious process while in service. The examiner is asked to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any lung disability began in service or is causally related to service, due to exposure to contaminated drinking water at Camp Lejeune. The examiner is advised that the law does not require a medical principle be established to the point of being generally accepted in the scientific community or reach the level of scientific or medical consensus. Instead, the literature need only establish that the evidence for and against that the question is in approximate balance. The examiner is asked to specifically discuss the relationship between any diagnosed lung disability and the Veteran’s deployment in the Persian Gulf. If any lung condition is not attributable to a known diagnosis, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s complaints constitute undiagnosed illness consistent with the Veteran’s Southwest Asia service during the Gulf War. A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings. A.M. CLARK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts 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.