Citation Nr: 21028747 Decision Date: 05/12/21 Archive Date: 05/11/21 DOCKET NO. 18-23 770 DATE: May 12, 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 shown in service, is not causally or etiologically related to service, and did not manifest to a compensable degree within one year of separation. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 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 Marine Corps from June 1999 to July 2003, with additional reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). On his substantive appeal, the Veteran requested a hearing before the Board. The Veteran subsequently withdrew his hearing request in a June 2018 written statement. See 38 C.F.R. § 20.704(d). In January 2019, the Veteran attempted to opt-in to VA's Rapid Appeals Modernization Program (RAMP). However, this appeal was activated under the legacy system prior to VA's receipt of this notice. Therefore, the Board will continue with its adjudication of the matters on appeal under the legacy system. These appeals were previously remanded by the Board in August 2019 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the issue being decided herein, the Board sought additional private medical treatment records, VA treatment records, and directed that the Veteran undergo a VA examination. The RO then obtained the requested records, and the Veteran underwent a VA examination (as described more fully below). The Board finds substantial compliance with its remand instructions. At that time, the Board also remanded a claim seeking a compensable initial rating for left ear hearing loss for the issuance of a Statement of the Case (SOC), pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). An SOC was provided in August 2020, after which the Veteran did not execute a substantive appeal. 38 C.F.R. §§ 20.200, 20.202, 20.302(b). Accordingly, this matter is no longer before the Board. Finally, though the Veteran has asserted that he is unable to work on account of his claimed psychiatric disorder, because he is not yet service-connected for this disorder, the issue of entitlement to a total disability rating based on individual unemployability may not be raised in conjunction with the service connection issue. Service Connection The Veteran is currently pursuing service connection for a back disorder. 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). Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran clearly demonstrates a current disability. During January 2020 VA examination, he was diagnosed with intervertebral disc syndrome (IVDS) with radiculopathy of the bilateral lower extremities, degenerative disc disease (DDD), and retrolisthesis. VA and private medical records also document intermittent treatment for related pain, including with a private chiropractor. Accordingly, the first element of both direct and secondary service connection has been met. Given the Veteran's diagnosis of DDD (arthritis), the Board has considered the applicability of presumptive service connection to this appeal. However, the VA examiner identified the onset of this condition as January 2020, in conjunction with x-rays performed during the Veteran's evaluation. This diagnosis was offered several years following the Veteran's separation from service, and there is no competent evidence which indicates an earlier onset. Accordingly, this appeal does not succeed on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Additionally, the Veteran initially posited that his current back disorder was causally related to a bilateral knee condition. See, e.g., August 2015 claim. However, service connection for bilateral knee disorders were denied in a December 2015 rating decision, and have not subsequently been granted. As the Veteran is not currently service-connected for a bilateral knee disorder, this appeal cannot succeed on a secondary basis. Thus, the focus of the analysis here is on entitlement to service connection on a direct basis. During the pendency of this appeal, the Veteran attributed his current back disorder to the physical demands of service, including carrying heavy weight on his back during hikes, and to multiple in-service motor vehicle accidents (MVA). See, e.g., January 2016 Notice of Disagreement (NOD); January 2020 VA examination. A veteran is generally competent to report that which he perceives through the use of his senses, including events capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although the Veteran's service treatment records (STRs) are silent for lower back symptoms, diagnoses, or treatment during service, his testimony regarding the physical demands of service is both competent and credible, particularly in the absence of conflicting evidence. Miller v. Wilkie, 32 Vet. App. 249 (2020). Moreover, the Veteran's testimony is consistent with the nature of his service and clearly documented in the record, such that the second element of direct service connection has been met in this respect. Notably, the Veteran's STRs also document two MVAs. The first occurred in January 2002, when the Veteran hit his head on the underside of a vehicle. This also satisfies the second element of direct service connection. The second MVA occurred in May 2002. The Veteran was involved in a rollover accident and taken to the emergency room for evaluation, and repeatedly solicited follow-up treatment in subsequent months, primarily for knee complaints. Per the Veteran's own admission and with additional supporting evidence, the May 2002 MVA is found to be the result of the Veteran's own willful misconduct, as the Veteran was driving while intoxicated. See, e.g., January 2020 VA psychiatric examination (noting that the Veteran rolled his car while on leave and driving while intoxicated, but avoided nonjudicial punishment for this incident); May 2002 hospital report (noting that the Veteran was traveling at a high rate of speed); see generally VA treatment records (noting a history of intermittent alcohol abuse). VA regulations clearly establish that compensation shall not be paid if the disability in question was the result of the veteran's own willful misconduct, including the abuse of alcohol or drugs. See 38 U.S.C. §§ 105, 1110, 1131; 38 C.F.R. §§ 3.1(n), 3.301; see also VAOPGPREC 2-97 (January 16, 1997). Thus, even if the Veteran's current back disorders were attributed to the May 2002 MVA, service connection is precluded on this basis. Accordingly, no further consideration will be offered to the May 2002 accident. Nonetheless, the Veteran's in-service physical performance and the January 2002 MVA satisfy the second element of direct service connection, such that the appeal may be granted upon the finding of a nexus between these events and the Veteran's current back disorder. The evidence does not support such a finding in this case. Rather, the January 2020 VA examiner opined that it was less likely than not that the claimed back disorder was incurred in or caused by the Veteran's military service. By way of rationale, the examiner noted that there was no mention of back pain during service or thereafter until approximately 2014, when the Veteran sought treatment with a chiropractor. Subsequent records also do not document back pain. On contemporaneous evaluation, the Veteran stated he had no back pain or symptoms until approximately 2010, following his exit from service. Additionally, there was no indication of an abnormal back or neurological examination in the interim, or STRs suggesting back symptoms. Therefore, the current findings and symptoms appear to be related to post-service events. Thus, based on the lack of chronicity in documentation, the lack of subjective symptoms for many years following separation, and normal past evaluations, the onset of the Veteran's back disorder appeared to be due to post-service activity. This opinion is highly probative evidence against the claim. Notably, the examiner offered a definitive nexus opinion as supported by a detailed rationale which directly contemplates the Veteran's military and medical histories, including the nature of his current back disorders and their identifiable onsets. 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"). Although the examiner does not explicitly address the physical demands of the Veteran's service or his MVAs, an accompanying examination report documents both the Veteran's testimony on these matters and the related evidence of record. Thus, it is apparent that these in-service incurrences were fully and properly considered in the examiner's provision of the negative opinion, and there is no competent evidence which tends to contradict the examiner's findings. See also AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). In contrast, the Veteran contends that his back disorder is related to service. However, he lacks the requisite training and expertise to offer a competent etiological opinion. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, greater probative value is afforded to the medical evidence of record, which does not support the finding of a nexus in this case. Thus, the preponderance of the evidence is against the claim such that the benefit-of-the-doubt rule is not applicable, and the appeal is thus denied on a direct basis. 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 remaining issue. The Veteran underwent VA examination in January 2020, during which he identified multiple in-service stressors. However, development has not yet been conducted to verify the reported events. Such action must now be undertaken. In this respect, the Board acknowledges the Veteran's contention that he has provided all requested information to VA. See, e.g., August 2020 lay statement. However, VA requested information regarding his purported stressors in November 2015; a specific response has not been received to date. The Veteran is advised that participation in the VA adjudication process is a two-way street, and VA is precluded from verifying the purported stressors without his assistance in this respect. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (participation in the VA process is a "two-way street"). Additionally, the January 2020 VA examination is found to be inadequate, as the examiner diagnosed the Veteran with specific phobia but did not address his significant history of additional psychiatric diagnoses during the period on appeal. See generally VA treatment records (noting diagnoses of anxiety, posttraumatic stress disorder (PTSD), and depression); January 2014 private examination (diagnosing anxiety disorder). Accordingly, an adequate opinion must be obtained. The matters are REMANDED for the following actions: 1. Provide the Veteran with VA Form 21-0781 and request its completion. Thereafter, complete any necessary efforts to corroborate the stressors identified by the Veteran during the pendency of this appeal, to include during the January 2020 psychiatric examination and any responsive VA Form 21-0781. All such efforts must be clearly documented in the claims file. 2. Obtain an addendum 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 report must reflect that review of the claims file occurred. In particular, the examiner is asked to offer medical opinions as to: (a.) Identify all psychiatric disorders demonstrated by the Veteran during the pendency of this appeal. In this respect, a diagnosis of PTSD must be offered in accordance with VA regulations. (b.) For each diagnosed disorder, opine as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to service. Here, the examiner must address all in-service events reported by the Veteran, to include the death of a fellow servicemember following a motor vehicle accident and lack of training for in-service motor vehicle operators. However, the examiner is NOT requested to address the May 2002 MVA, which was found to be the result of the Veteran's willful misconduct herein. 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 must be provided for all opinions or conclusions expressed. 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.