Citation Nr: 21022372 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-10 016 DATE: April 15, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. REMANDED Entitlement to service connection for acquired psychiatric disorder, also claimed as posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The current lumbar spine disability did not have its onset in service or within one year of service, nor is such disability shown to be related to active military service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1961 to January 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 Regional Office (RO) rating decision. In May 2017, December 2017 and November 2019, the Board remanded these claims for additional development. I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). This claim is also subject to compliance with the prior Board remands. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran, nor his representative have identified any specific error notification or assistance error. For the lumbar spine claim, the record reflects substantial compliance with the prior Board remands. The agency of original jurisdiction (AOJ) obtained San Juan VAMC records from October 1988 through August 2019. The Veteran had a March 2018 VA lumbar spine examination with accompanying medical opinion. The AOJ readjudicated the claim in the December 2020. The Board finds that appellate adjudication for the lumbar spine disability claim may proceed without prejudice to the Veteran. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). II. Service connection for a lumbar spine disability Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, may be presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1133; 38 C.F.R. §§ 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service treatment records (STRs) do not show any complaints or treatment for low back pain. The November 1962 separation physical examination showed that the Veteran’s spine was clinically evaluated and deemed normal. On the accompanying Report of Medical History, the Veteran denied any swollen or painful joints and arthritis or rheumatism. October 1988 VA treatment records included a lumbosacral spine X-ray report. The indication for X-ray appears to be history of severe lumbar spine pain. The study revealed minimal degenerative changes in the anterior osteophyte formation at L3, L4 and L5. Spondylolisthesis or spondylolysis was not seen. February 1991 VA lumbar spine magnetic resonance imaging (MRI) report showed minimal disc bulging at L4-L5 and L5-S1 level, most likely not of clinical significance. April 1991 VA treatment records showed that the Veteran underwent a lumbar laminectomy and discectomy. November 1993 VA treatment records showed that the Veteran had a history of increasing low back pain over the past 5 years. He underwent a hemilaminectomy and discectomy. A contemporaneous lumbar spine MRI report noted scar tissue at L3-L4 levels with slight disc bulging. November 1996 VA lumbar spine MRI report showed findings consistent with scar tissue formation affecting the right lateral recess and right neural foramen at L3 and L4. Slight bulging disc was also found at this level. September 1998 VA treatment records showed that the Veteran complained about low back pain. Physical examination showed tenderness around the low waist area. The clinician assessed low back pain (LBP) secondary to degenerative joint disease (DJD). December 1998 lumbar spine MRI report found the following: left lateral herniated nucleus pulposus (HNP) at L2-L3; mild left lateral bulge of the L4-L5 intervertebral disc; lumbar spondylosis and degenerative disc disease throughout; and loss of lumbar lordosis, most compatible with paravertebral muscle spasm. In March 2018, the Veteran had a VA lumbar spine examination with a physician. The physician diagnosed degenerative arthritis of the spine, intervertebral disc syndrome, L4-5 disc herniation status post laminectomy with failed back syndrome, lumbar spondylosis, and lumbar degenerative disc disease. The Veteran complained about constant low back pain, described as a press/ standing like pain sensation without irradiation. He had difficulty with motion and in the standing position. Physical findings for the lumbar spine were detailed. The physician furnished a negative medical opinion. He noted that the Veteran reported working as a heavy truck driver for more than 20 years following service. He also noted that the Veteran was first treated for back pain at VA in October 1989. He stated that lumbar spondylosis was related to the natural aging process or repetitive trauma. It did not develop during short periods of service, such as the Veteran’s active service dates spanning two years. Rather, the Veteran’s age, obesity and occupational history would predispose him to lumbar degenerative disc disease or degenerative joint disease. He concluded that the lumbar spine findings are more likely related to the natural process of aging and again noted that there was no evidence of continuity of treatment for at least 10 years following service. For the following reasons, the Board finds that while the Veteran has a current lumbar spine disability, it has not been shown to have had it onset in service or within the first post-service year, or to be otherwise related to a disease or injury in service. As an initial matter, the Veteran is competent to report his low back pain history. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). However, he does not provide specific reports dating low back pain symptoms to service or report any particular military injury that he associates with low back pain. Continuous symptoms since service are not reasonably raised by the evidence and will not be considered further. The Board finds that the issue of a relationship to service for post service low back pain is a complex medical question. This is because of the time lapse from service to current disability and internal medical processes involved in ascertaining the cause or onset for the currently diagnosed lumbar spine disorders. Thus, the relationship question extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Id. Competent medical evidence is required to establish a relationship to service for post service lumbar spine disability. 38 C.F.R. § 3.159(a)(1). Because the Veteran is not competent to report as a medical expert, any such reports from him about a military relationship have no probative value. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The medical evidence concerning a relationship to service is limited to the March 2018 VA medical opinion, and it weighs against the claim. It is based upon an examination of the Veteran, a review of his treatment records, and consideration of his reported history. The physician cites the evidence of record as including multiple factors that weigh against a military relationship. Although he notes an absence of medical treatment for at least 10 years following service, it is one among several factors supporting the medical opinion. Overall, the March 2018 VA medical opinion is sufficient in light of the absence of any conflicting medical evidence and lay symptom history. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate). There is no other medical evidence of a relationship between the Veteran's current lumbar spine disability and service. Neither he nor his representative has alluded to the existence of any such evidence. For the above stated reasons, the preponderance of the evidence is against the claims for service connection for a lumbar spine disability. The benefit-of-the-doubt doctrine is therefore not for application, and service connection for a lumbar spine disability is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for acquired psychiatric disorder, also claimed as PTSD, is remanded. Although the Board regrets the additional delay, a remand is needed for an addendum medical opinion. The December 2020 VA-contract medical opinion is inadequate for adjudication purposes for the following reasons. In the supporting rationale, the psychiatrist omits the Veteran’s August 1985 Board hearing testimony, cites an incorrect evidentiary standard and mistakenly identifies 2012 the time when the Veteran initially sought formal psychiatric treatment. First, the August 1985 hearing testimony adds details about the Veteran’s military stressors and includes a favorable report that the Veteran developed personal problems when he returned from service. Second, the psychiatrist’s reference to the incorrect evidentiary standard contemplates a greater threshold of persuasiveness than required to substantiate a relationship to service. Lastly, the earliest record of formal psychiatric treatment appears to be from 1979, which is materially different than the 2012 date identified in the medical opinion. These limitations make the December 2020 VA-contract medical opinion inadequate for adjudication purposes. Another medical opinion is needed as instructed below. The matter is REMANDED for the following action: Request a medical opinion from a VA psychiatrist or psychologist, who has not previously examined the Veteran, in order to determine whether there is a relationship to service for currently diagnosed recurrent major depressive disorder (MDD). The claims file and a copy of this remand must be made available to the psychiatrist/ psychologist for review, and he or she must specifically acknowledge receipt and review of these materials in any reports generated. If the psychiatrist/ psychologist determines an examination is needed for the medical opinion, such examination, to include via telehealth if possible, should be scheduled. Then, the psychiatrist/psychologist should indicate whether it is at least as likely as not (at least a 50 percent probability) that the currently diagnosed recurrent MDD is related to or had its onset during the Veteran's military service. The psychiatrist/psychologist must address the Veteran's August 1985 Board hearing testimony and his psychiatric treatment records which reflect formal psychiatric treatment dating to at least 1979. The psychiatrist/psychologist should consider and discuss all pertinent medical evidence, service treatment records, VA and private medical records, and lay assertions, to include the Veteran's contention of continued symptomatology beginning in service. A rationale should be given for all opinions rendered. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.