Citation Nr: 22018562 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-54 589 DATE: March 29, 2022 ORDER Service connection for an acquired psychiatric disorder is granted. Service connection for a neck disorder is denied. Service connection for a back disorder is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disorder began during active service. 2. The evidence of record persuasively weighs against finding that the Veteran has had a neck disorder at any time during or approximate to the pendency of the claim. 3. The evidence of record persuasively weighs against finding that the Veteran has had a back disorder at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a neck disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a back disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1975 to February 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2019 decision, the Board remanded this matter to the RO for further development. More specifically, the Board directed the RO to schedule the Veteran for a new examination to determine the etiology of his psychiatric disabilities and to obtain Social Security Administration (SSA) records. The records were furnished in December 2019 and a medical opinion submitted in February 2020. In March 2020, the RO issued a Supplemental Statement of the Case again denying service connection for the Veteran's claims. The Board therefore finds that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998). The matters now return to the Board for further appellate review. Service Connection Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for an acquired psychiatric disorder is granted. The Veteran contends that his psychiatric disorder is related to a military traumatic event during which he was attacked and injured his right hand. See October 2020 Appellate Brief. Service treatment records reflect that in December 1975, the Veteran injured his right hand when he hit a servicemember. In June 1976, he was given a profile for emotional and attitudinal problems. He was treated for substance abuse in January 1977. Post-service treatment records show that he reported psychological or emotional problems, including depression and anxiety in February 2004. VA treatment records beginning in July 2016 document the Veteran's mental health problems caused by military trauma. Specifically, the Veteran described an attack by some men in his unit, which resulted in his service-connected right hand disorder. He reported that while he was on military leave, a fellow servicemember was stabbed 80 times during a robbery. He also stated that his brother died of a suicide. Other VA treatment records include diagnoses of anxiety disorder, post-traumatic stress disorder (PTSD), and adjustment disorder. The Veteran submitted a medical opinion by Dr. H. H. for his psychiatric symptoms in February 2018. The examiner diagnosed the Veteran with unspecified anxiety disorder after completing a Mental Disorder Disability Benefits Questionnaire (DBQ). The examiner opined that the Veteran's unspecified anxiety disorder more likely than not began in military service, continues uninterrupted to the present and is aggravated by his ulnar nerve compression associated with right hand 5th finger s/p fracture. Furthermore, the examiner opined that his symptoms prevent him from maintaining substantially gainful employment. The physician reviewed the evidence of record, accounted for the lay statements and provided a medical opinion based on an adequate rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the medical opinion is of great probative value. The Veteran was afforded a VA examination in February 2020. The examiner diagnosed the Veteran with unspecified anxiety disorder and opioid use disorder. The examiner emphasized that based on the examination and medical record review, the Veteran's reported symptoms do not meet the DSM-5 diagnostic criteria for PTSD. The examiner opined that the requested medical opinion regarding the Veteran's diagnosis cannot be offered without resorting to mere speculations. More specifically, the examiner noted that a review of the Veteran's medical records was negative for anxiety and depression. The examiner noted that although the Veteran was reportedly abusing drugs and treated in rehab, there were no other psychiatric condition(s) noted while in service. Furthermore, the examiner stated that the Veteran's record shows no evidence of psychiatric symptoms or concerns subsequent to the reported hand injury for over 30 years. The examiner concluded that the etiology of the Veteran's condition cannot be ascertained without resorting to mere speculation and there is no evidence that the Veteran's current condition of unspecified anxiety disorder was service-aggravated. The Board finds the February 2020 opinion inadequate for adjudicative purposes. The examiner stated that the Veteran's record shows no evidence of psychiatric symptoms or concerns subsequent to the reported hand injury for over 30 years. However, the Veteran reported psychological or emotional problems, including depression and anxiety, in February 2004 and has been treated for psychiatric symptoms since 2016. He was diagnosed with PTSD in May 2017. The examiner's opinion is based on an incorrect factual premise. An opinion that is based on an incorrect factual premise is inadequate. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Therefore, this opinion is of minimal probative value. The Board notes that the February 2018 private opinion is the only adequate opinion of record and there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). The Veteran submitted lay statements by his sister and a family friend in October 2020 stating their observations of the Veteran's behavior before he enlisted in the Army and thereafter. The Board acknowledges the statements of the Veteran, his sister and friend, as to the existence and etiology of his claimed psychiatric disorder and acknowledges that they are competent to give evidence about what he experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). However, while they are competent to report the Veteran's current symptoms, they do not have the education, training, or experience to diagnose or opine as to the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, their statements are of low probative value. Thus, in reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran's favor. The Board finds that entitlement to service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for a back disorder is denied. The Veteran generally contends that his neck and back disorders stem from service. He offers no specific contentions in support of his claims. The service treatment records are silent to any complaints, diagnoses or treatments of neck and back disorders. His entrance and separation examinations are also silent to any complaints of neck and back conditions. Post-service treatment records show the Veteran received a neck fusion in 2004, because he had an intracranial infection. He complained about neck pain in December 2014. Also, in December 2014, the Veteran was diagnosed with degenerative joint disease, lumbar spine. There are reports of complaints of back pain in September 2002 and various times in 2004. The Board notes that VA opinions as to service connection were not obtained. However, the Board finds that such an etiology opinion is not required. In this regard, in determining whether the duty to assist requires VA to provide a medical examination or medical opinion with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a Veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran does not have a current diagnosis of a neck or back disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's complaints were documented years before his claims filing and appear to have resolved. As the record does not reflect a current diagnosis related to a neck or back condition, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Further, the evidence does not indicate that the Veteran's neck and back disorders may be related to his service and the Veteran has not provided any argument as to why he believes the conditions were related to his service. See McLendon, supra. In this regard, a mere conclusory generalized lay statement that service event or illness caused a current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Court has held that VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide this claim as to direct service connection. The Board notes the Veteran has not provided a medical opinion to weigh in this matter. While the Veteran may believe his neck and back conditions are related to service, he is not competent to provide a diagnosis or nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. See Jandreau v. Nicholson, supra; Kahana v. Shinseki, supra. Therefore, the persuasive evidence of record is against the Veteran's claims; the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Thus, service connection for back and neck disorders is denied. [CONTINUED ON NEXT PAGE] 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). Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeyemi, B. 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.