Citation Nr: 21024559 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 18-47 754 DATE: April 23, 2021 ORDER Service connection for a back disorder is denied. REMANDED Service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT A back disorder was not incurred in, or is otherwise etiologically related to, the Veteran’s active service, including the use of ill-fitting boots; arthritis did not onset within one year of military separation. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1964 to March 1965. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These appeals were previously remanded by the Board in May 2020 for additional development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specific to the Veteran’s claim for service connection for a back disability, the Board directed that updated VA treatment records be obtained and that the Veteran undergo a VA examination. As additional treatment records were associated with the record and the Veteran underwent a VA examination, there is substantial compliance with the Board’s remand directives. Service Connection The Veteran is currently pursuing direct service connection for a back disorder. The Board will limit its analysis accordingly. Thus, service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As a threshold matter, there is competent evidence of a current disorder. During September 2020 VA examination, the Veteran was diagnosed with degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), spinal stenosis, and degenerative disc disease (DDD). VA treatment records spanning the period on appeal generally support these diagnoses and document the Veteran’s reports of relevant symptoms, including pain. Accordingly, the first element of direct service connection has been met. Upon the Veteran’s diagnosis of degenerative arthritis and DDD, the Board has considered whether this appeal may be granted on a presumptive basis as based upon chronicity. See 38 C.F.R. § 3.307, 3.309. However, the September 2020 VA examiner identified the onset of these disorders as 2020, and there is no medical evidence which establishes that these disorders onset within one year of the Veteran’s military separation. Thus, the competent evidence does not establish such chronicity that the appeal may be granted on this basis. Nonetheless, the appeal may still succeed upon the finding of an in-service incurrence and a nexus thereto. Initially, the Veteran posited that his current back disorder was causally related to bilateral pes cavus. See, e.g., June 2018 Notice of Disagreement (NOD). As the Veteran is not currently service-connected for his pes cavus, the appeal cannot succeed on this secondary basis. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). However, the Veteran has also argued that his current back condition is causally related to the physical demands of service, to include the use of ill-fitting boots during extended periods of standing and exercise. See May 2020 Informal Hearing Presentation (IHP). A veteran is generally competent to testify as to events capable of lay observation, such as the issuance of ill-fitting boots during service. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran has consistently testified as to such an in-service experience, to include during his September 2020 VA examination and in a May 2020 IHP. A December 2006 private treatment letter also confirms the Veteran’s history of “prolonged periods of exercise, standing, walking and, poorly fitted work boots,” and there is no competent evidence which tends to contradict his recollections. In affording the Veteran the benefit of the doubt, the second element of direct service connection is also met. However, the competent evidence weighs against the finding of a nexus between the Veteran’s current back disorders and his military service. Rather, the September 2020 VA examiner opined that the Veteran’s current back disorders were less likely than not incurred in or caused by his military service. In doing so, the examiner noted that there were no chronic complaints, treatments, or assessments of a back condition in the Veteran’s service treatment records (STRs). Instead, the DDD and arthritis describe the natural deterioration of the spinal discs as the spine wears down with age. This can cause collapsed discs, herniated/bulging discs, and spinal stenosis, depending on the severity of the spinal deterioration. Given the brief duration of the Veteran’s military service and the “hiatus” of complaints for a back condition after separation, it was unlikely that his current back issues were incurred in or caused by service. This opinion is adequate, as it considered the Veteran’s complete history and contains a sufficient rationale for the Board to weigh. It is also probative evidence against the claim. Importantly, the examiner considered the full scope and character of the Veteran’s multiple back disorders, the nature of his military service, and his reports of chronic symptoms. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). There is no indication that the examiner was not fully aware of the Veteran’s past medical history or misstated any relevant fact in formulating the negative nexus opinion. Moreover, he possesses the requisite expertise to render competent opinions as to medical matters, to include the etiology of current conditions. Additionally, there are no competent medical opinions of record which tend to contradict the examiner’s conclusions. In contrast, the only positive opinion of record is that implicitly offered by the Veteran. However, he lacks the requisite training and expertise to competently assess the etiology of his back disorders or whether his chronic symptoms are attributable thereto. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, greater probative value is afforded to the competent medical evidence of record, which supports a negative finding in this case. Insofar as the Veteran’s representative has challenged the adequacy of the September 2020 VA opinion, the Board disagrees. Specifically, the representative argues that the examiner provided a “conclusory opinion with no supporting rationale;” did not consider the Veteran’s reports of ill-fitting boots; and improperly based his opinion, in part, upon the duration of the Veteran’s service and the lack of symptoms in his STRs. See February 2021 IHP. However, the VA examiner clearly offered a definitive nexus opinion as supported by a detailed rationale. Said rationale afforded direct contemplation as to the nature and duration of the Veteran’s service. Despite the representative’s argument that these factors are not relevant to such an assessment, there is no precedent or other basis for such a finding; rather, the Board finds these factors to be directly pertinent, as they speak to the impact of the Veteran’s service on his physical condition. Further, as to the representative’s contention that the Veteran’s reports of ill-fitting boots was not discussed, the Veteran’s testimony on this matter is clearly documented in the September 2020 examination report and there is no evidence to suggest that the examiner did not contemplate this reporting in offering his nexus opinion. Thus, the Board does not find that a new VA opinion is warranted at this time. Upon the weight of the September 2020 opinion, a nexus is not found. Rather, the preponderance of the evidence is against the claim such that the benefit-of-the-doubt rule is not applicable. The appeal seeking direct service connection for a back disorder is hereby denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the psychiatric appeal. In May 2020, the Board remanded this matter to obtain an adequate VA examination. The September 2020 VA examiner concluded that the Veteran did not present with a current psychiatric disorder. However, a November 2017 examiner had previously diagnosed the Veteran with adjustment disorder with depressed mood, and relevant symptoms are documented in VA treatment records. See also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, a VA opinion which addresses the Veteran’s recent history of a psychiatric condition is required. The matter is REMANDED for the following action: Obtain an opinion addressing the questions below.  If the reviewing examiner determines that the opinions requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate.  Schedule an in-person examination only if deemed necessary to answer the questions below.    The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.    In particular, the examiner should offer opinions as to the following:  (a.) Identify all psychiatric diagnoses demonstrated by the Veteran during the period on appeal, to include during the November 2017 VA examination. (b.) For each diagnosis, opine as to whether it is at least as likely as not (50 percent probability or more) that the disorder was caused or aggravated by the Veteran’s service-connected hearing loss and tinnitus? In formulating the opinion, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.”  Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.    A complete rationale should be provided for all opinions or conclusions expressed.  It should be noted that the Veteran was competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.   Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.