Citation Nr: 21015082 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-52 734 DATE: March 16, 2021 ORDER Entitlement to service connection for a psychiatric disability, diagnosed as unspecified depressive disorder with anxious distress, alcohol use disorder, and cannabis use disorder, is granted. Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. When resolving the benefit of the doubt in favor of the Veteran, his psychiatric disorder, diagnosed as unspecified depressive disorder with anxious distress, alcohol use disorder, and cannabis use disorder, is related to his active service. 2. The Veteran’s back disability is not shown to be causally or etiologically related to an in-service event, injury, or disease and did not manifest within one year after separation from service; nor is continuity of symptomatology is established. CONCLUSIONS OF LAW 1. The criteria of service connection for a psychiatric disorder, diagnosed as unspecified depressive disorder with anxious distress, alcohol use disorder, and cannabis use disorder, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from December 1978 to March 1979 and February 1980 to October 1984. For his meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded the claims for service connection for a psychiatric disability and a back disability for further development. The Board finds there has been substantial compliance with the remand directives and the matters are properly before the Board for adjudication. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent, credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). All elements for service connection are met for the Veteran. Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence, and medical evidence, in a case is to be considered by the Board in deciding the claim. The competence, credibility, and probative weight of evidence must be assessed. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a psychiatric disability is granted. The Veteran contends his psychiatric disabilities are related to his active military service. The Veteran’s October 2019 VA examination diagnosed the Veteran with unspecified depressive disorder with anxious distress, alcohol use disorder, and cannabis use disorder. The VA examiner also noted an additional diagnosis of stimulant use disorder but noted it is in sustained remission. The December 2020 private opinion confirmed the same diagnoses for the Veteran. The diagnosis of unspecified depressive disorder meets the criteria for the first element of establishing service connection for a psychiatric disability. The Veteran’s service treatment records are silent as to any complaints, treatment, or diagnoses related to a psychiatric disability. The Veteran declined a separation examination when he separated from service in 1984. However, the Veteran reported in-service disciplinary problems related to marijuana use and not following orders. He reported conflicts with his sergeants and issues with his wife. He received an honorable discharge, but his personnel record indicates a June 1984 instance where he was disciplined which resulted in a reduction of his rank. The Veteran reported he started drinking alcohol in-service and continued his pre-military use of marijuana. The Veteran reported his use of alcohol resulted in disciplinary problems. The Veteran’s VA treatment records reflect his depression, sleep issues, and anxiety. His past mental health treatment reflects medication trials. He was also hospitalized by the VA for depression, he reports he was experiencing many losses at that time. He has also undergone residual treatment for his drug and alcohol usage. The Veteran is in receipt of Social Security Disability (SSD). The Veteran underwent a June 2008 assessment for Mental Residual Function Capacity. The assessment concluded the Veteran’s allegations appear credible and consistent. The assessment also noted an IQ discrepancy from testing in 1974 and testing at the assessment. It was noted this may be due to the Veteran’s extensive substance abuse history. A fully favorable decision was issued in October 2009 by SSD based on the Veteran’s severe impairments, including his knees, mild mental retardation, depression, obesity, diabetes, and polysubstance dependence in remission. The Veteran underwent a VA examination in October 2019. As noted above, the Veteran was diagnosed with an unspecified depressive disorder with anxious distress, a cannabis use disorder, and an alcohol use disorder. The VA examiner also diagnosed the Veteran with stimulant use disorder in remission. The VA examiner noted that while the disorder is in remission, it is listed due to the significant past problems associated with it since the Veteran’s discharge from the Army. The October 2019 VA examiner reported the Veteran underwent a psychological evaluation in January 1974. The VA examiner noted the scores suggest an overall pattern of low intelligence. The VA examiner also explored the mental status evaluation provided by Dr. A.H.F. Dr. A.H.F. stated the extent of the Veteran’s cognitive functioning’s relationship to his history of substance abuse is not clear but there is a strong likelihood the connection is direct. The October 2019 VA examiner concludes Dr. A.H.F did not draw any conclusions about the Veteran’s mental disorders being related to military service. The examiner also recognized that a private opinion was submitted in March 2015 stating the Veteran’s depressive disorder was more likely than not aggravated by his time in the military and has continued uninterrupted to the present. The October 2019 VA examiner concluded the opinion presumes a pre-existing mental disability prior to service, but there is no sufficient evidence to support a pre-existing mental disability. The October 2019 VA opinion explored the Veteran’s past medical and social history. The VA examiner concluded the Veteran’s post-military psychosocial functioning appears to be marked by impairment in areas of conflicted primary relationships, social avoidance, employment related difficulties, legal problems, substance abuse problems, and depression. The VA examiner noted the Veteran’s current psychosocial functioning appears to be marked by depressed mood, anxiety, chronic sleep impairment, impaired judgment, disturbances of mood and motivation, inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances, and suicidal ideation. The October 2019 VA examiner concluded the Veteran’s psychiatric disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner reported that the Veteran’s history indicates likely alcohol and cannabis use prior to and during service. The VA examiner concludes a precipitating event for his difficulties seems to be his struggles in school, but noted there was no history of mental or behavioral health issues in-service. The VA examiner noted the Veteran had good functioning in-service until his last year. The October 2019 VA examiner noted that alcohol and substance use disorders are complicated in their development and stated they are multifactorial. The VA examiner noted alcohol and substance abuse disorder may be associated with mental health disabilities, but that association is not the same as causation. The VA examiner explained that mental disabilities such as depression may contribute to alcohol and substance use disorders and alcohol and substance use disorders may contribute to mental disorders, and they may occur comorbidly. The VA examiner further stated it is often difficult or impossible to determine the exact course. The VA examiner stated that since the Veteran separated from service, the primary focus of his treatment, beginning in 1985, was for alcohol and substance abuse disorders. The VA examiner also discussed the articles submitted by the Veteran’s attorney. The VA examiner stated that while interesting articles, they do not answer whether the Veteran’s diagnosed mental disability is related to his active service. The VA examiner concluded that the data suggests the reported symptoms are associated with levels of impairment across the areas of functioning addressed throughout his report and that overall, it is less likely than not the Veteran’s diagnosed mental disabilities are related to his active service. A private opinion dated December 2020 was provided, the opinion concluded the Veteran’s depression more likely than not began in service. The private opinion reported the Veteran stated his time in-service was abusive and humiliating. The Veteran reported he had difficulty performing duties and he reported he began drinking heavily in-service in hopes of getting “kicked out” of service. The Veteran also reported issues of racism and threats of violence and he stated his alcohol and marijuana use were to block everything out. The Veteran also reported he fantasizes about searching for and harming the sergeants who he contends bullied him in-service, but he denies the intent to do so. He reported when he has those thoughts, he reaches out to his brother who is a preacher; his brother provides emotional and spiritual support. The Veteran reported he notified his recruiting officer of his intellectual disability, but was told it was not a problem. The private opinion stated based on the functional impairments associated with his intellectual disability, the stressors of military life, including the bullying, racism, and threats of violence, likely overwhelmed the Veteran’s coping skills. The private physician also noted the Veteran’s drug and alcohol use exacerbated his existing impairments and complicated his mental health disabilities. The private opinion provided a detailed summary of the Veteran’s medical history and ultimately concluded the Veteran’s depression more likely than not began in-service. The Veteran submitted buddy statements from his brothers and friend. The statements contend his depressive disorder symptoms began during his military service and have gotten worse since separation. The Veteran and his attorney also submitted articles discussing depression and service. The Board is cognizant of 38 U.S.C. § 1154(a) which requires VA to give due consideration to the places, types, and circumstances of the service of a claimant. In light of the Veteran’s diagnosis in the 2019 VA examination, his personnel record indicates a June 1984 instance where he was disciplined which resulted in a reduction of his rank, his consistent reporting of his in-service issues, along with his VA treatment records, the Board resolves all reasonable doubt in his favor and finds that he did suffer an in-service disease or injury incurred in or aggravated by his active military service. The second service connection requirement is met. As such, the question remaining for consideration is whether there is a nexus between the in-service disease or injury and the current psychiatric diagnosis. In cases where there are two conflicting medical opinions, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value. Furthermore, the VA has a duty to uphold the benefit of the doubt rule, and in cases where the evidence is in relative equipoise, service connection must be granted. In weighing the VA opinion against the private medical opinion, the Board determines that the evidence for and against the medical nexus question is in relative equipoise. Both of the examiners have been identified as medical professionals, were aware of the Veteran’s medical history, and offered rationales for their opinions. Although the VA examination provided a negative nexus opinion to a psychiatric disability, the VA examiner did diagnose the Veteran with an unspecified depressive disorder with anxious distress. The VA examiner also concluded that alcohol and substance use disorders are complicated in their development, may be associated with mental disorders, and mental disorders such as depression may contribute to alcohol and substance use disorders. The VA examiner felt the Veteran’s difficulties stem from his struggles in school. The Board finds that the December 2020 positive private nexus opinion, the VA diagnosis of an unspecified depressive disorder with anxious distress, and buddy statements are sufficient to establish service connection in this case. Accordingly, when resolving doubt in favor of the Veteran, the Board finds that the criteria for service connection have been met for a psychiatric disability, diagnosed as unspecified depressive disorder with anxious distress, alcohol use disorder. Entitlement to service connection for a back disability is denied. The Veteran contends that service connection is warranted for a back disability. He contends his back disability incurred in-service when he fell out of a tree and hurt his back while working as a lineman. The Veteran has a diagnosis of degenerative arthritis of the spine and spondylolisthesis. The current disability criterion is met. The Veteran’s service treatment records are silent as to any specific complaints of or treatment for a back injury or disability during service. The Veteran’s report of medical history at separation in March 1979 was silent as to any back related complaints, the only notation was for recent weight gain or loss of weight. The Veteran declined a separation medical examination in August 1984 for that period of service. The Veteran has consistently reported he injured his back in-service. The December 2018 Board decision found the Veteran credible as to the in-service injury, as his report was consistent with his military occupational specialty (MOS). The Board concludes the second criteria to establish service connection is met. Thus, while the Board accepts the Veteran’s contentions regarding the circumstances of his service, it must still be shown by competent evidence that his current disability is related to his active service. No such competent evidence exists here. The Veteran underwent a VA examination in 1986 for his back disability. His x-rays were normal and the VA examiner reported a possible mild ligamentous sprain. The Veteran submitted a private opinion in July 1987. The private opinion stated he injured his back in-service and concluded his injury should be service connected. The private opinion provided no rationale in support of its conclusion. As such, the opinion is inadequate and cannot be the basis for the award of service connection. The Veteran underwent a VA examination in October 2016 and had an x-ray for his back pain. The 2016 x-ray reflected moderate facet arthropathy and grade I anterolisthesis. The 2016 VA examination was determined to be inadequate as it was based on the Veteran not being credible in reporting his back injury in-service. Most, recently, the Veteran underwent a VA examination in September 2019. The Veteran reported his back pain has been ongoing since service and the pain is constant. The VA examiner confirmed the diagnosis of degenerative arthritis of the spine and spondylolisthesis. The September 2019 VA examiner referenced the Veteran’s March 1979 report of medical history wherein the Veteran marked no to “recurrent back pain.” The VA examiner also referenced the January 1986 x-ray that was noted to be normal. The VA examiner noted July 1987 medical records reflect the Veteran has chronic low back syndrome. The VA examiner concluded that the Veteran’s back disability is less likely than not related to an in-service injury, event, or disease and did not occur within a year of service. The VA examiner stated that if the Veteran had an old injury affecting his lumbar spine, it would be seen in his 1986 x-rays, which were normal. The VA examiner also stated the Veteran reported working as a furniture mover; the VA examiner also noted the Veteran has a long history of morbid obesity. The VA examiner references medical literature indicates the most common risk factors for development of arthritis in the lumbar spine include general wear and tear, aging, and obesity. The VA examiner reported the changes on the Veteran’s lumbar spine x-rays appear to be more related to his long history of morbid obesity and physical labor rather than a single injury in-service; the VA examiner stated the normal spine x-ray from January 1986 supports the conclusion. The Veteran’s VA treatment records provide a history of back pain. The VA treatment records reflect reports of symptoms and medication for back pain, but the VA treatment records do not show a link between his back disability and active service. The Veteran’s lay assertions contend his injury in-service is what links his current disability to his service. Although the Veteran is competent to describe when he began experiencing certain lay-observable symptoms, having no training or expertise in medicine, he is not competent to offer an opinion on the complex issue of whether his back disability is related to his service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77; Kahana v. Shinseki, 24 Vet. App. 428, 433-435. The lay assertion by the Veteran in this regard has no probative value. For these reasons, the Board finds the weight of the evidence is against service connection on a direct basis for his back disability. In this case, as to whether the Veteran’s back disability is related to his active duty service, the Board finds that the September 2019 VA examination report is the most probative evidence of record. The September 2019 VA examination report was definitive and was based on a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, and pursuant to the Board’s remand instructions. Furthermore, the September 2019 examiner provided a complete and thorough rationale in support of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Nevertheless, the Board notes that certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Regarding the presumption in favor of chronic diseases and the continuity of symptomatology, the Board notes that the Veteran has been diagnosed with degenerative arthritis of the spine. For VA purposes, diagnosis of degenerative arthritis is a chronic disease, thus warranting consideration under 38 C.F.R. § 3.309 (a). However, for the presumption under 38 C.F.R. § 3.309 to apply, the disability must manifest to a compensable degree within one year of discharge from service. In this case, the Veteran was not diagnosed with degenerative arthritis within one year of discharge from service. Additionally, the Veteran had a normal x-ray in January 1986, which was over one year after his discharge from active service. The objective medical evidence indicates that the Veteran’s degenerative arthritis of the spine did not manifest to a compensable degree within one year of his discharge from service. Moreover, while the Veteran is competent to report experiencing symptoms of back pain in service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he was silent with respect to any back issues upon discharge from service and refused a discharge examination. Importantly, although a possible mild ligamentous sprain was noted, examination and x-rays of the back in January 1986 were normal. Further, there are no reports of back pain in the record from 1987 until May 2005. At that time, the Veteran reported no particular injury. It would be reasonable to assume that if the Veteran had been experiencing back pain since service, he would have reported it during the course of seeking treatment. Again, the first evidence of arthritis is well outside the presumptive period. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Significantly, the VA examiner found that the changes on the Veteran’s lumbar spine x-rays appear to be more related to his long history of morbid obesity and physical labor rather than a single injury in-service. In other words, his back disability has been attributed to intercurrent causes. Since the Veteran’s degenerative arthritis did not manifest to a compensable degree within one year of discharge from service and there is no competent and credible evidence of pertinent symptomatology since service, the presumption in favor of chronic diseases is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). In sum, although the Veteran has established a current disability and an in-service injury, the preponderance of the evidence weighs against findings that the Veteran’s back disability is causally related to his service. Further, his degenerative arthritis is not related to his active service, was not diagnosed to a compensable degree within a year of his separation, and a continuity of symptoms since service for that disability has not been shown. In conclusion, the preponderance of the evidence is against the Veteran’s claim; there is no doubt to be resolved. Service connection for a back disability is not warranted. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.