Citation Nr: 21023180 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-10 964 DATE: April 20, 2021 ORDER Entitlement to service connection for low back disability is denied. REMANDED Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the low back disability began during active service or any period of active duty for training (ADT) or inactive duty for training (IDT) or is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for low back disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from February 1996 to January 2003, with the United States Army Reserves and the Army National Guard subsequently with various periods of ADT and IDT from August 2007 to June 2014. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified at a hearing with the undersigned Veterans Law Judge in May 2020.  Service Connection The Veteran contends that his current low back disability is due to his service, to include an injury during IDT while serving in the Army National Guard. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may additionally be granted for disability resulting from injury incurred in or aggravated while performing ADT or IDT or a disease incurred or aggravated while performing ADT. 38 U.S.C. §§ 101(24), 106. The Veteran has a current low back disability. For example, at his August 2017 VA examination he was diagnosed with thoracolumbar strain. Thus, the remaining question is whether the current low back disability is related to service. Service treatment records show that the Veteran complained of some low back pain but only in association with gastroenteritis. During the December 2002 separation examination, evaluation of the spine was normal. In a corresponding report of medical history, the Veteran specifically denied having had recurrent back pain or any other back pain. If back pain was present during service, the Board would expect the Veteran would have responded “yes” when asked if he had recurrent back pain at separation because a reasonable person would have interpreted the question to include symptoms of back pain. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having back pain. Line of duty forms from a period of IDT in October 2011 show a complaint of sciatica from the left lower back after feeling a pop/pain in the lower back while walking. Line of duty forms from a period of IDT in November 2012 likewise show a sudden pop followed by progression of pain and stiffness in the thoracic back while the Veteran was walking. A VA examiner in October 2013 diagnosed thoracolumbar spine strain and opined that it was at least as likely as not related to service. As the examiner provided no discernible rationale for this opinion, it is afforded no probative weight. The Veteran presented for a VA examination in August 2017, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. 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. In support of this conclusion, the examiner explained that the Veteran had no chronic back condition due to active component of the service, and that he had denied any back problems at separation. He also did not have chronic back problem as due to his time in the National Guard. The examiner explained that the Veteran’s x-rays in 2013 showed mild degenerative conditions of the Veteran’s spine, and that the pain he felt from walking during drill weekend is more likely due to this spine condition which would be expected to cause periodic pain complaints. The examiner also explained that the degenerative joint disease of the spine and strain would not be the result of walking. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, while the Veteran did complain of back pain during service, it was due to a stomach problem, and the during the December 2002 separation report of medical history, the Veteran denied having had recurrent back pain or any back problem. Regarding the back pain line of duty forms provided during IDT, the examiner has opined that it is not due to any service-related back disability but rather another back condition. While the examiner did not use the word “aggravation,” the examiner has addressed the lack of aggravation by explaining that the back pain the Veteran experienced during IDT has its onset in an unrelated back pain, and that experiencing occasional symptoms of pain from that condition is normal. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that his back disability is the result of his service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., back pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation from service where he denied recurrent back pain or any back problem. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. REASONS FOR REMAND 1. Headache disability Remand is necessary to obtain an addendum medical opinion regarding the etiology and nature of the Veteran’s tension headaches. During the May 2020 hearing, the Veteran reported that he suffered headaches during active service. Notably, in August 1997, the Veteran did complain of constant headaches for the past month. The Veteran complained of headaches on other occasions as well. For example, he complained of headaches and flu-like symptoms in December 1999, and headaches were noted when he had abdominal pain and vomiting in March 2000. The Veteran was provided a VA examination in August 2017; however, no opinion was offered as to whether a headache disability onset during service or was caused by an in-service event, disease, or injury. Therefore, to adequately address the Veteran’s claim, an addendum opinion should be obtained. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Acquired psychiatric disorder Given the contentions by the Veteran, the claim is being expanded to include all acquired psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009). At his hearing, the Veteran reported treatment by a counselor. The record was held open so the Veteran could submit these records, but they were never submitted. On remand, the Veteran should be asked to assist in obtaining these records. In addition, a medical opinion on the nature and etiology of the Veteran’s acquired psychiatric disorder should be obtained. In October 2013, the Veteran was provided a mental disorder examination, but no opinion was provided regarding the claim. Id. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims, to include records from his counselor. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a current headache disability onset during service or is otherwise related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to consider the complaints of headaches during service, to include in August 1997 when the Veteran complained of constant headaches for a month. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disorder onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.