Citation Nr: 21042371 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-59 879 DATE: July 12, 2021 ORDER Service connection for a low back disability is denied. VETERAN'S CONTENTIONS The Veteran contends that he has a low back disability as a result of an in-service incident in which he landed "spread eagle" after a parachute jump. REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, PTSD, depressive disorder NOS, and anxiety disorder is remanded. FINDING OF FACT The Veteran's low back disability did not have its onset in service, or within one year of his discharge from active service and is not otherwise related to a period of active service. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to November 1987. These matters come to the Board of Veterans' Appeals (Board) on appeal from December 2014 and September 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Louisville, Kentucky. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2019. The transcript of the hearing has been associated with the claims file. These matters were previously before the Board at which time they were remanded for further development. Entitlement to service connection for a low back disability Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). In addressing the criteria of a current diagnosis, the evidence of record includes a December 2014 VA Back (thoracolumbar spine) Conditions examination report in which the examiner diagnosed the Veteran with lumbosacral strain. In addressing in-service incurrence, the Veteran's service treatment records (STRs) are void of complaint of or treatment for a low back disability. The Veteran testified during the October 2019 Board hearing that he injured his back as a result of an in-service incident in which he landed "spread eagle" after a parachute jump. The Veteran's military personnel records document that the Veteran received a parachute badge. Thus, the in-service incurrence element is met. In addressing nexus, to the extent that the Veteran has stated that he has a low back disability attributable to service, the Board finds that he is competent to report on his symptoms and that of which he has personal knowledge, but he is not competent to provide an opinion as to the etiology of his disabilities because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno, 6 Vet. App. at 469-70; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran is not competent to relate his low back disability to his service or to any incident therein. The evidence of record otherwise includes the December 2014 VA Back (thoracolumbar) examination report in which 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. The examiner reasoned that there was no mention of back pain in service or on full physical examination close to separation and the Veteran worked in a physical capacity most of the time since service. The examiner further reasoned that the Veteran had numerous visits to the VAMC from January 2002 to May 2014 and he first complained of back pain in May 2014. In December 2019, the Board remanded the claim for entitlement to service connection for a low back disability for an additional VA examiner opinion addressing the Veteran's competent lay statements. In a February 2020 addendum, an examiner noted the correspondence from Dr. LB and the Veteran's lay statements regarding his low back disability and opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran made numerous visits to sick call in service but made none for back pain, and separation flight physicals, including on February 7, 1985, made no mention of back pain. The examiner further reasoned that the Veteran had regular and consistent visits to the Fresno VA but there was no mention of back pain until 2014. In the interim, he worked in physical jobs and recreationally rode a bicycle. Additionally, June 2013 back x-rays and examination were really unremarkable, which would be very unlikely for a back condition that spanned over 27 years. The Board acknowledges that the evidence of record includes multiple correspondences from Dr. LB, Vocational Rehabilitation Counselor, stating that the Veteran should be service connected for a low back disorder. However, Dr. LB did not provide an adequate rationale for her opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion. . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.") The Board finds the February 2020 VA opinion to be more probative. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of on competent medical expert over than of another when decision makers give an adequate statement of reasons and bases). The VA opinion was based on examination of the Veteran, a review of the claims file and relevant facts, and the examiner provided a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In sum, without any competent probative evidence that the Veteran's low back disability is related to service, direct service connection is not warranted. Additionally, there is no indication that the disability manifested within one year of service. The Board finds that the Veteran's low back disability did not have its clinical onset in service, or within one year of his discharge from active service and is not otherwise related to a period of active service; therefore, service connection is not warranted. There is no doubt to be resolved in this case. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, PTSD, depressive disorder NOS, and anxiety disorder is remanded. The Veteran seeks service connection for an acquired psychiatric disorder which he contends is related to military sexual trauma (sexually assaulted while being examined for a chronic gastrointestinal problem and while being examined after a spider bite). Alternately, the Veteran contends that he has an acquired psychiatric disorder related to harassment from his superior noncommissioned officer (including an incident in which the officer tried to strip him of his weapon while he was in a combat zone). In this regard, the evidence of record includes a January 2021 VA opinion concluding that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran reported to the judge that after the service he was highly motivated about his life and he did not seek treatment for approximately 20 years after his time in service. The examiner opined that due to the length of time post service and the Veteran's ability to maintain appropriate level of functioning during those 20 years, it is less likely than not that his mental health disorders can be connected to or attributed to his time in the service, as there is no evidence other than the Veteran's self-report to support this claim. The evidence of record also includes a February 2021 VA opinion again concluding that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no mental health documentation in the military related to either event. Also, there was no diagnosis of PTSD or any other psychiatric disorder (in the past or present) related to either stressor. The Board finds both the January 2021 and February 2021 VA examiner opinions inadequate to decide the Veteran's claim for service connection for an acquired psychiatric disorder. The February 2021 VA examiner opinion relied on a lack of mental health documentation in service. However, the Board notes that service connection may be granted for any disease initially diagnosed after service, when the evidence established that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The January 2021 VA examiner relied on a lack of evidence of treatment of psychiatric symptoms in the 20 years immediately following service. However, the Board notes that the Veteran reported experiencing psychiatric symptoms prior to seeking medical treatment. He further reported self-medicating with drugs and alcohol. See Layno v. Brown, 6 Vet. App. 465 (1994). This evidence seemingly contradicts the examiner's opinion that the Veteran had the ability to maintain appropriate level of functioning for approximately 20 years after his time in service. In light of the aforementioned inadequacies of the January 2021 and February 2021 VA examiner opinions, the Board finds that an addendum opinion addressing whether the Veteran has an acquired psychiatric disorder related to service should be provided on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the file to the February 2021 VA examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is to address the following: (a.) For each psychiatric disorder diagnosed during the period on appeal, no matter whether it is currently resolved or not, is it at least as likely as not (50 percent probability or more) that it had its onset in service, or within one year of his separation from service, or is otherwise related to service, including combat and MST? Please specifically address the Veteran's contention that he has an acquired psychiatric disorder (1) related to military sexual trauma (sexually assaulted while being examined for a chronic gastrointestinal problem and while being examined after a spider bite) and/or (2) related to harassment from his superior noncommissioned officer (officer tried to strip him of his weapon while in a combat zone, racial harassment, forced to jump with a loose parachute). Please also specifically address the opinion from Dr. LB, Vocational Rehabilitation Counselor. (b.) The examiner is advised the lack of a diagnosis of an acquired psychiatric disorder in service is not, by itself, a sufficient reason to find there is no nexus to service. Please note that the Veteran testified during the October 2019 Board hearing that he was self-medicating, and he experienced psychiatric symptoms prior to seeking medical treatment. (c.) In formulating the requested opinions, please specifically acknowledge and discuss the psychiatric diagnoses of record, including bipolar disorder, depressive disorder NOS, and anxiety disorder. (d.) In determining whether the Veteran meets the criteria for a current psychiatric diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the March 2014 claim for service connection. Please note that although the Veteran may not meet the criteria for a psychiatric diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. (e.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.