Citation Nr: 21021998 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-21 117 DATE: April 14, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depression and generalized anxiety disorder, is denied. Entitlement to service connection for chronic myositis of the para-cervical spine muscles, also claimed as chronic cervical spine pain (hereinafter “cervical spine disability”), to include as secondary to service-connected left elbow arthritis and/or impairment of supination and/or pronation of forearm, is denied. FINDINGS OF FACT 1. The Veteran’s major depression and generalized anxiety disorder did not manifest on active duty service and are not otherwise shown to be related to military service. 2. The Veteran’s cervical spine disability did not manifest on active duty service and is not otherwise shown to be related to service, and is not caused or aggravated by his service-connected left elbow arthritis and/or impairment of supination and/or pronation of forearm. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include major depression and generalized anxiety disorder, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for cervical spine disability, to include as secondary to service-connected left elbow arthritis and/or impairment of supination and/or pronation of forearm, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1961 to November 1963. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by the San Juan, Commonwealth of Puerto Rico Regional Office (RO) of the United States Department of Veterans Affairs (VA). These issues were previously before the Board in November 2018, at which time they were remanded for additional development. In November 2020, the RO issued a rating decision which granted service connection for hearing loss. This represents a full grant of benefits and therefore this issue is no longer on appeal. In July 2020, the RO issued a statement of the case (SOC) for the issue of entitlement to service connection for hypertension. The Veteran did not perfect an appeal of this issue and it is not before the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is a listed condition. However, as there is no evidence, argument, or allegation of the currently claimed diseases within the first post-service year, the presumption is not applicable here. Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Major Depressive Disorder and Generalized Anxiety Disorder The Veteran asserts that he has an acquired psychiatric disorder, to include major depression and generalized anxiety disorder, due to his time in service. The Veteran’s service treatment records are negative for complaints, treatment, or diagnoses of any type of psychiatric or psychological symptoms or disorder. The Veteran submitted a private opinion from Dr. CEMQ, dated in February 2015. Dr. CEMQ stated that the Veteran reported nervousness, anxiety, irritability, difficulty in adapting to stressful circumstances, inability to establish and maintain effective work and social relationships, disturbances of motivation and mood, depressed mood, little interest or pleasure in doing things, feeling down, hopeless, isolation episodes, easy crying and insomnia with nightmares and flashbacks of his traumatic experiences during active duty. He also reported poor frustration tolerance, suspiciousness, memory loss and poor concentration, forgetting recent events, dates, and family members names. Dr. CEMQ stated the Veteran “is in a comprehensive psychiatric and psychological therapy with poor improvement,” and opined that was it more probable than not that the Veteran’s psychiatric disorders were secondary to his military service performance. VA treatment records from July 2001 to December 2015 are negative for complaints, treatment, or diagnoses of any psychiatric or psychological symptoms, including depression and anxiety. VA treatment records show that the Veteran was diagnosed with mild depression in January 2016, and was prescribed medication. At his initial psychotherapy consult, the Veteran stated that “since he retired 30+ years ago he has felt unproductive.” The clinician noted that this was when his symptoms started, and that economic problems contributed to his anxiety, and in an addendum noted that “[s]ymptoms have been present since his retirement 30+ years ago due to limited social involvement or participation in pleasurable activities.” A treatment note dated in February 2016 indicates the Veteran experienced anxiety due to medical and financial conditions. A May 2016 treatment note from a psychiatric follow-up visit reflects the Veteran reported he was sleeping better with his medication. He denied aggressiveness, ideas of harming self or others, current persistent daily depressive symptoms, hallucinations, manic/hypomanic symptoms, or suicidal ideas/plans/prior gestures/attempts. The clinician noted chronic anxiety symptoms and mild depressive symptoms. In July 2020, the Veteran underwent a VA mental disorders examination. The VA examiner noted the Veteran’s diagnosis of mild unspecified anxiety disorder. The VA examiner summarized the Veteran’s level of occupational and social impairment as a mental condition has been formally diagnosed, but symptoms are not severe enough to either interfere with occupational and social functioning or to require continuous medication. The VA examiner noted symptoms including anxiety, chronic sleep impairment, mild memory loss and disturbances of motivation and mood. multiple worries, difficulty sleeping, easily fatigued, difficulty in concentration or mind going blank, and irritability. The Veteran denied aggressiveness, ideas of self-harming or harming others, current persistent daily depressive symptoms, hallucinations, manic/hypomanic symptoms, panic attacks, and suicidal ideas/plans/prior gestures/attempts. The VA examiner noted that there was no medical evidence of current psychiatric treatment, and that the Veteran stated that he saw a private psychiatrist “around 1970.” The VA examiner determined that it was less likely than not that the Veteran’s major depression and anxiety disorder was related to his time in service. The examiner noted that the Veteran started psychiatric/psychological care in 2016, and that at his initial psychological examination on January 13, 2016, the Veteran “explained that since he retired (from the police department in 1981) 30+ years ago he has felt unproductive. This is when symptoms started. Economic problems also contribute to anxiety.” The Board finds the VA examiner’s opinion probative in this case. The examiner thoroughly examined the Veteran, reviewed the record, and provided a clear rationale for the opinion given, the basis of which is consistent with the evidence of record. The Board notes the assertions of the Veteran’s representative, in a February 2021 brief, that the examiner’s opinion was based on the absence of psychiatric complaints shortly after service. However, the opinion was not merely based on the absence of documented psychiatric complaints; it was based on the Veteran first reporting psychiatric problems in 2016, at which time it was established by his treating providers—largely by the Veteran’s own report—that his mental health problems were due to factors unrelated to service. The Board also finds the only medical evidence in support of the Veteran’s claim—the February 2015 opinion of DR. CEMQ—to have essentially no probative value. Dr. CEMQ provided no rationale or explanation whatsoever for the opinion that a mental health disorder was related to service. It is furthermore unclear what, if any, relevant records were reviewed by Dr. CEMQ, or what provided the basis for his opinion. In this regard, Dr. CEMQ’s notation that the Veteran “is in a comprehensive psychiatric and psychological therapy with poor improvement” is inconsistent with the record, which reflects that the Veteran did not seek mental health treatment until 2016. Finally, the Board acknowledges the Veteran’s March 2018 statement that his mental health problems are related to stressful events he experienced in service. However, as discussed above, the competent and probative medical evidence has demonstrated that his mental health problems are not related to service, but rather to later, non-service factors. Moreover, the Veteran himself, in seeking treatment, reported that his symptoms were related to non-service factors such as lack of activity and his economic situation, reporting that his “[s]ymptoms have been present since his retirement 30+ years ago due to limited social involvement or participation in pleasurable activities.” The Board thus finds his later statements relating his symptoms to his service more than 50 years earlier to lack credibility. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (in analyzing credibility, the Board is justified in taking into account multiple factors, including lack of contemporaneous medical evidence, possible bias, and inconsistencies within the record) Therefore, a preponderance of the evidence is against a finding that major depression, generalized anxiety disorder, or any other psychiatric disability either began during service or is related to service in any other way. Accordingly, service connection for an acquired psychiatric disorder, to include major depression and generalized anxiety disorder, is denied. Cervical Spine Disability The Veteran asserts that he has a cervical spine disability that is related to his service-connected left elbow disability and/or his service-connected impairment of supination and/or pronation of forearm disability. Service treatment records are negative for treatment of cervical spine symptoms and/or an injury. The Veteran submitted a private opinion from Dr. CEMQ, dated in February 2015. Dr. CEMQ stated that the Veteran reported neck and high back pain with stiffness, numbness, tingling, sensorial loss, cramps, and weakness of para-cervical spine muscles radiating toward shoulders, elbows, and wrists. Dr. CEMQ further stated that the Veteran is unable to lift heavy weights or perform routine duties, and diagnosed chronic cervical spine pain, and chronic myositis para-cervical spine muscles. He opined that the Veteran’s musculoskeletal disorders were more probable than not secondary to his military service performance. VA treatment records from July 2001 to February 2021 are negative for complaints, treatment, or diagnoses of any cervical spine disability. The Veteran underwent a VA contract neck examination in November 2020. The examiner noted the Veteran’s cervical strain. The Veteran could not recall when his neck condition began, but stated he has had pain in his neck and that he had oral medication for the pain, and described the pain as an 8 out of 10 in intensity. Physical examination revealed some limitation of motion. The examiner noted that the Veteran had no signs or symptoms of radiculopathy. Sensory and muscle strength test results were all normal, and the Veteran did not have any ankylosis, any other neurological abnormalities related to his cervical spine, or intervertebral disc syndrome of the cervical spine. The examiner stated that the only diagnosis warranted for the claimed myositis of the para-cervical spine muscle/chronic cervical spine pain was cervical strain. The VA contract examiner further determined that it was less likely than not that the Veteran’s cervical strain was related to his time in service as there was no evidence to support a direct nexus between current cervical strain and service. The examiner explained that, based on record review and examination there was no clinical and objective evidence to support a direct nexus between current cervical strain and active service; service treatment records were silent for direct cervical (neck) treatment, diagnosis, complaint or followup. The VA contract examiner also determined that it was less likely than not that the Veteran’s cervical strain was related to his service-connected elbow arthritis and/or impairment of supination and/or pronation of forearm, as these were different disease entities with different pathophysiological process unrelated to each other. The examiner noted that each condition is intrinsic of its anatomical area without biomedical interaction. Further, the medical literature did not support a causal relationship between these conditions; left elbow arthritis and/or impairment of supination and/or pronation of forearm disability was not considered a risk factor or an etiology for the onset of Veteran’s cervical condition. The Board finds the VA examiner’s November 2020 opinion probative. The examiner thoroughly examined the Veteran and reviewed the evidence of record. The examiner noted the absence of any noted cervical spine problems in service and for more than 50 years after service, as well as the fact that the Veteran, himself, reported not being able to recall when his neck condition began, in combination with there being no clinical reason to link a current cervical strain to service 5 decades earlier. In this regard—as indicated in the VA examiner’s November 2020 opinion—the record does not establish any in-service injury, disease, or event to which any current cervical spine disability can be linked. Service treatment records reflect no complaints or treatment relating to the cervical spine, while reflecting that the Veteran sought treatment for numerous other medical problems such as foot sprain, left elbow problems, shore throats, colds, and stomach ache. Furthermore, the Veteran, himself, has not specifically asserted that his current cervical spine symptoms began in service or are directly related to any in-service injury or event. The only evidence at all relating the Veteran’s current cervical spine problems to service is the February 2015 opinion of Dr. CEMQ, which the Board finds to have essentially no probative value, as it contains no rationale whatsoever for the opinion, or explanation as to what provided the basis for the opinion. Rather, as reflected in a March 2018 statement, the Veteran asserts that his cervical spine problems are related to his service-connected left elbow and forearm disabilities. The Veteran, however, did not explain how his cervical spine problems might be related to his service-connected disabilities. Moreover, the Veteran is not competent to medically relate any cervical spine condition to his elbow and forearm disabilities. See Jandreau, 492 F.3d 1372. The only competent opinion regarding a nexus between the Veteran’s claimed cervical spine problems and his service-connected disabilities is that of the November 2020 VA examiner, which the Board finds probative on this matter. The examiner, after examining the Veteran and reviewing the record, clearly explained that these were different disease entities with different pathophysiological process unrelated to each other, with each condition intrinsic of its anatomical area without biomedical interaction. The examiner further explained that the medical literature did not support a causal relationship between these conditions, as left elbow arthritis and/or impairment of supination and/or pronation of forearm disability was not considered a risk factor or an etiology for the onset of a cervical condition. Therefore, a preponderance of the evidence is against a finding that any cervical spine disability began during service or is related to service in any other way, or was caused or aggravated by any service-connected disability. Accordingly, service connection for a cervical spine disability, to include as secondary to service-connected left elbow arthritis and/or impairment of supination and/or pronation of forearm, is denied. Andrew Mack Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, 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.