Citation Nr: 21040160 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-00 043A DATE: July 2, 2021 ORDER Entitlement to service connection for a back disorder is denied. REMANDED Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder, to include persistent depressive disorder, to include claimed anxiety is remanded. FINDING OF FACT A back disorder did not manifest in service and is unrelated to service. CONCLUSION OF LAW A back disorder was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2007 to August 2011. 1. Entitlement to service connection for a back disorder Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present 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 or aggravated during service -the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). At a September 2016 VA examination, the Veteran was diagnosed with degenerative disc disease (May 2016) and an in-service diagnosis of lumbosacral strain (October 2009) was also noted. These conditions are not identified as "chronic diseases" under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). The Veteran asserts that his back disorder is directly related to service. At the September 2016 VA examination, he reported performing "bull in the ring" fighting while at Camp LeJeune and noted pain the left lumbar area approximately two months later while deployed to Afghanistan. Pain was intermittent and he was prescribed ibuprofen by a corpsman. Notably, the Veteran has not asserted that he injured or aggravated his back during combat. As such, the applicability of section 1154(b) will not be discussed. Service treatment records document October 2009 pain in the lower back after falling over a barstool, assessed as a lumbar muscle strain. There is also a March 2008 note of pain in the lower back, however, it was determined to be due to strep throat. At an August 2011 Report of Medical Assessment upon separation, the Veteran reported that his health was the same as the previous examination and that he did not suffer from any injury or illness on active duty for which he did not seek medical care. In an accompanying Report of Medical History, the Veteran specifically denied recurrent back pain or any back problem, or any other relevant symptoms. The September 2016 VA examiner concluded that the Veteran's currently diagnosed back disorder was less likely than not related to his active service, to include the diagnosed lumbar muscle strain. The examiner explained that the in-service muscle strain was an acute and transitory condition that resolved prior to separation and is unrelated to the Veteran's current degenerative disc disease. The back and spine were normal upon separation. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the September 2016 VA examiner's opinion that the Veteran's back disorder is less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered the opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board notes the Veteran's assertion that his current back disorder is directly related to service, but ultimately finds that his statements are far less probative than the opinion of the VA medical professional, as it is far more detailed and reasoned and based upon the examiner's medical expertise. The Board finds that the probative value of the lay assertions is outweighed by the clinical evidence of record. The evidence of record suggests that the Veteran was identified with degenerative disc disease multiple years after service and the first manifestation of such disorder was after service. Nothing at that time suggested a history dating back to service. There is no medical evidence of record documenting manifestations of degenerative disc disease or any other relevant chronic disorders in service (the medical evidence explains that the in-service diagnosed lumbar muscle strain was acute and transitory). The Board finds that the contemporaneous medical records outweigh the post-service lay statements of the Veteran with respect to a direct link between his back disorder and active service. The medical evidence of record is afforded greater probative value than the more general after-the-fact lay assertions of the Veteran. In sum, there is insufficient competent and probative evidence linking the Veteran's back disorder to service. The contemporaneous records establish that the spine and back were normal upon separation and that the in-service muscle strain resolved prior to separation. The more probative evidence establishes that the Veteran did not have a chronic back disorder during service, that such disorder is not related to any event in service, and that it is otherwise unrelated to service. The evidence establishes that the remote onset of degenerative disc disease is unrelated to service. The preponderance of the evidence is against the claim of entitlement to service connection for a back disorder. The claim must be denied. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder, to include persistent depressive disorder, to include claimed anxiety is remanded. The Veteran's most recent VA examination to assess the severity of his PTSD was afforded in September 2016. The most recent VA treatment records are from 2016. In a January 2017 statement, the Veteran indicates that he has experienced suicidal ideation and has previously attempted suicide. In addition, he reports currently receiving treatment at the Cincinnati VAMC. Given the Veteran's report of symptoms, the passage of time since the last VA examination, and the likelihood of additional relevant VA treatment records not currently associated with the file, Remand is appropriate. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records. 2. Schedule the Veteran for a VA psychiatric examination to determine the current level of severity of his PTSD. Any indicated studies should be performed, and the examination report should comply with all protocols for rating PTSD. A complete rationale for any opinion offered must be provided. The examiner should consider the previous VA examination, the Veteran's lay statements, and any other relevant medical records. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.