Citation Nr: 21015954 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-28 517 DATE: March 18, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for substance abuse is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a low back disability began during active service or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1972 to June 1975. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Low Back Disability The Veteran is seeking service connection for a low back disability, which he attributes to an in-service motor vehicle accident. Upon consideration of the evidence, the Board concludes that, while the Veteran has a current low back disability, the preponderance of the evidence weighs against finding that the Veteran’s low back disability began during service or is otherwise related to an in-service injury, disease, or event. Service treatment records are silent for any complaints, treatments, or manifestations of a low back disability. Upon discharge, the Veteran’s spine was clinically evaluated as normal, and he specifically denied having or ever having a history of recurrent back pain. See Report of Medical Examination and Report of Medical History dated April 25, 1975. Post-service, the Veteran underwent a quadrennial examination for the U.S. Army Reserves in June 1979 wherein he denied having or ever having recurrent back pain. He otherwise reported “No problems.” Examination at that time revealed a normal clinical evaluation of the spine. In July 1979, the Veteran was involved in an off-duty, off-post automobile accident in a non-Army vehicle that was unrelated to Army operations. There was no line of duty investigation as there was no damage to government property and damage to the individual was deemed “not extensive.” The record reflects that the Veteran first reported having back pain in April 1994 at a VA facility. At that time, the Veteran reported falling down the stairs at work; upon evaluation, treating physicians assessed muscle spasms. In September 1994, the Veteran was evaluated for recurrent back spasm with pain in the ankle and feet wherein he reported “symptoms off & on for the past 2-3 yrs.” At an August 1995 VA examination, the Veteran reported having back spasms since 1991, when he injured his back while moving furniture. His symptoms included low back pain and limited range of motion. He was diagnosed with lumbosacral spine injury with residuals of chronic strain, recurrent, spondylosis L2 with associated osteophytes, and reduced range of motion. While the Veteran continued to have low back pain over the years, treating physicians did not provide an etiology for his low back disability nor did they attribute his low back disability to his period of service. Upon review of the record, the Board finds that service connection is not warranted on a direct basis. Direct service connection necessitates a link between the Veteran’s service and his claimed disability. As to the Veteran’s low back disability, no such link is supported by the evidence of record. The Board notes that during the appeal period, the Veteran has not been afforded a VA examination in relation to his low back disability claim. Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in- service event, injury or disease,” or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board finds that a VA examination in this instance is unnecessary. There is no competent evidence suggesting that that the Veteran’s current disability began in service or is related to service. The Veteran himself is not shown to be competent to diagnose the onset and/or etiology of an orthopedic disorder. Additionally, the credible evidence is against a finding of recurrent or persistent symptoms of disability since service. At the January 2021 Board hearing, the Veteran testified that his low back pain started after an in-service motor vehicle accident in Germany and has continued since then. The motor vehicle accident in Germany occurred during active service ending in 1975. At his separation examination, the Veteran denied having or ever having recurrent back pain and, during a quadrennial examination in 1979, he again denied having or ever having recurrent back pain. These statements directly contradict his current recollections of persistent back pain since active service recalled many decades after service, which reduces the probative value of his testimony. See, e.g., Seng v. Holder, 584 F.3d 13, 19 (1st Cir.2009) (notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory); State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975) (stating that the fact that a witness “has stated the matters differently on a previous occasion tends to demonstrate either a failure of memory, or a lack of integrity, and in either event it weakens and impairs the value of his testimony.” The Board places greater probative weight to the Veteran’s statements in 1975 and 1979 as they are more contemporaneous in time to service discharge and bear the indicia of reliability as being made in the context of obtaining appropriate medical treatment and/or diagnosis. See Lilly’s An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). These statements are consistent with the evaluations by medical professionals at that time finding no abnormality of the spine on physical examination. They are also consistent with the documented historical record wherein, in 1994, the Veteran reported back symptoms which had been “off & on for the past 2-3 yrs.” On the other hand, the Veteran’s recollections in 2021 are subject to the vagaries of memory due to the passage of time - here several decades - and are not consistent with the Veteran’s own documented statements in 1975 and 1979 or the accompanying medical evidence. Otherwise, there is competent medical evidence in 1975 and 1979 reflecting a normal clinical evaluation of the spine. As noted above, the Veteran is not competent to attribute degenerative changes of the spine first demonstrated in 1994 as attributable to any specific injury. The undersigned advised the Veteran of the need for a medical opinion or some type of competent evidence suggesting a correlation to an in-service event. The Veteran has not presented any competent evidence suggesting a nexus to service. Additionally, as the credible evidence is against a finding of continuity of symptomatology since service, the Board finds that service connection pursuant to 38 C.F.R. § 3.303(b) is not warranted. Additionally, there is no competent evidence of arthritis manifesting to a compensable degree within one year of service discharge. As such, service connection is not warranted under 38 C.F.R. § 3.309(a). In sum, the most probative evidence establishes that a low back disability was not manifested during service, nor is it otherwise etiologically related to service. Accordingly, the service connection claim for a low back disability is denied. REASONS FOR REMAND Acquired Psychiatric Disorder and substance abuse The Veteran contends that he developed an acquired psychiatric disorder during service; notably, he avers that his documented in-service drug abuse was his way of self-medicating his depression. To date, the Veteran has not been afforded a VA examination to determine the nature and etiology of his acquired psychiatric disorder. In this case, as there is evidence of a current acquired psychiatric disorder and evidence of in-service drug abuse, the Board finds that a VA examination is necessary in order to accurately adjudicate this claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006) In addition, the record suggests that the Veteran has received private treatment for his acquired psychiatric disorder. See VA Treatment Record dated March 17, 2014. Upon remand, the RO should attempt to obtain any relevant outstanding treatment records. The Board notes that the issue of substance abuse is inextricably intertwined with the service connection claim for an acquired psychiatric disorder. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any treatment physicians and/or facilities in which he received treatment for his acquired psychiatric disorder(s). Make two requests for the authorized records from any named physicians and/or facilities, unless it is clear after the first request that a second request would be futile. 2. Upon completion of records development, schedule the Veteran for a VA examination for his acquired psychiatric disorder, to include depression. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the acquired psychiatric disorder at least as likely as not related to service? Provide a rationale to support the opinion(s). (continued on the next page) In providing the requested opinion, consider the Veteran’s description of his in-service drug use as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported drug use in service and thereafter represented the onset of his current acquired psychiatric disorder, this should be noted. Stated another way, do the Veteran’s reports about his drug use align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.