Citation Nr: A25035703 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240306-422734 DATE: April 17, 2025 ORDER Entitlement to service connection for a thoracolumbar spine disability is denied. Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder, bipolar type, is granted. FINDINGS OF FACTS 1. The Veteran's thoracolumbar spine disability was not shown as chronic during service and did not manifest to a compensable degree within one year after service; there is no continuity of symptomatology, and; the disability was not incurred as a result of in-service disease or injury or a service-connected disability. 2. The Veteran does not have a diagnosis of PTSD that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM)-5 during the pendency of the appeal. 3. The Veteran reported a two-month history of depression on his separation examination, based on family problems. He was deemed qualified for separation. 4. A VA examiner, after a full review of the pertinent records, determined that the Veteran's depression in service was the "first signs of the current diagnosis of schizoaffective disorder." CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for acquired psychiatric disability, to include schizoaffective disorder, bipolar type, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to January 1987. As a matter of procedural history, the Veteran originally filed a claim for service connection for residuals of lower back pain and PTSD in January 2020, which was denied by the RO in a March 2020 rating decision. The Veteran filed a Supplemental Claim for readjudication of the previous denials in November 2023. In a November 2023 rating decision, the RO found no new and relevant evidence had been submitted for the back disability claim. However, it found that new and relevant evidence had been submitted for the Veteran's claim for PTSD, though, the denial was confirmed and continued. In November 2023, the Veteran submitted a VA Form 0996 Request for Higher Level Review (HLR) for both claims. The HLR decision was rendered in a second November 2023 rating decision. The rating decision adjudicated the claim of the thoracolumbar spine on its merits, which the Board finds as an implicit finding of new and relevant evidence. The second November 2023 rating decision also continued the denial of service connection for PTSD, but found a duty to assist error for any other acquired psychiatric condition. Development was conducted, and the issue readjudicated in a January 2024 rating decision, where denial of the claim for an acquired psychiatric condition was confirmed and continued. Subsequently, in March 2024, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal, and requested the AMA direct docket review. Under the rules of the AMA, the Board's review is limited to the evidence associated with the claims file as of the date of the second November 2023 rating decision for the thoracolumbar spine and PTSD, and the January 2024 rating decision on appeal for an acquired psychiatric disorder. 38 C.F.R. § 20.301. As a final matter, evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (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. Sheddon v. Principi, 381 F.3d. 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In deciding the Veteran's claim, 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 the persuasive evidence is against the claim, in which case the claim is denied. 38 U.S.S. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for thoracolumbar spine disability. The Veteran contends his thoracolumbar spine disability is due to military service. The Veteran has been diagnosed with a lumbosacral spine strain with IVDS disability through a VA medical examination. Upon review of the Veteran's VA medical treatment records, on July 10, 2013, there is documentation of a mild rotoscoliosis with degenerative change, and early degenerative disc disease (DDD) noted at L1-2 and L2-3. See VBMS, document labeled CAPRI, receipt date 9/16/2018, page 39 of 43. As such, the first element for establishing service connection is satisfied. Regarding an in-service event or injury, in January 2020, the Veteran was afforded a VA medical examination to ascertain the nature and etiology of his thoracolumbar spine disability. The examiner noted the Veteran's contention that the condition started in 1984; that he fell lifting a 15 gallon pot of water; when the condition began, the symptoms were in the lower back nerve; that the Veteran was in the hospital 1.5 to 2 weeks, when he was stationed in Germany, and; that the condition was treated in a German hospital in Bad Hersfelt Germany. In a January 2025 statement in support of the claim, the Veteran also contended that he sustained an injury to his lower back while loading food onto trucks. The Veteran's DD-214 documents his military occupational specialty (MOS) as a food service specialist. His service treatment records (STRs) document medical treatment at Kreiskrankenhaus Hersfeld, which is a hospital in Germany. Specifically, the Veteran's STRs contain documentation on March 18, 1985, of low back pain (LBP) x1 day; that he lifted heavy weight yesterday and has had pain since, and this was assessed as mechanical LBP/strain. See VBMS, document labeled STR- Medical, receipt date 9/29/1993, page 86 of 147. There is another STR note on April 17, 1986 of when the Veteran bent down to pick up an empty box and his back popped; he did not feel anything then, after walking about 29 minutes, right above the lumbar upon his back started tightening up and the right side of his body started hurting; he had difficulty walking or sitting up for more than a few minutes; pain located in the thoracic spine right above the lumbar; slight tenderness upon palpation, but complained of pain being constant and intense causing pain to the right arm, right leg down to his right knee, and; assessed as possible spinal injury/pinched nerve. See VBMS, document labeled STR- Medical, receipt date 9/29/1993, page 71 of 147. Thus, the second element of service connection has been met. Therefore, the question is whether there is a nexus, i.e., whether the Veteran's current thoracolumbar spine disability is at least as likely as not related to the in-service incidents. The Board concludes that the persuasive evidence is against relating the Veteran's thoracolumbar spine symptoms to his military service. As previously explained, the Veteran was afforded a VA medical examination in February 2020. The examiner provided a negative nexus medical opinion and explained that the Veteran sustained a muscle strain of the low back while in service (1986) and this is more than a year after separation from service, where he is claiming the back pain, and the Veteran's separation examination does not report any back pain. As the examiner reviewed the Veteran's military medical treatment records and post-military medical treatment records, took into consideration the Veteran's lay statements, and reconciled their rationale with substantiated reasoning with supported medical facts from the Veteran's claims file, the Board affords this opinion probative weight. Certain diseases, including organic diseases of the nervous system, such as degenerative changes of the spine/arthritis, are considered chronic diseases that will be presumed related to service if they were noted or diagnosed as chronic in service; or if they manifested to a compensable degree within one year after active duty discharge; or if chronicity or continuity of the same symptomatology has existed since service; with no intervening cause. 38 U.S.C. §§ 1101, 1113, 1137; Walker v. Shinseki, 708 F.3d. 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.309(a)(3). There is no diagnosis of degenerative changes in the year following the Veteran's separation. Notably, the first evidence of such arthritis is in July 2013, 26 years after service, at which time it was characterized as "early degenerative disc disease." Regarding continuity of symptomatology from the Veteran's separation, the Veteran contends his thoracolumbar spine disability is due to military service, when he injured his back lifting heavy equipment. However, the Board finds his statements to be not credible in light of the evidence of record. Of particular import, the Veteran's December 1986 separation examination includes a report of medical history, on which the Veteran reported several symptoms and maladies. However, he specifically denied recurrent back pain. Additionally, the Veteran's VA medical treatment records demonstrate that he sought treatment for back pain, and by way of history, did not discuss his military service, but instead focused on a post-service back injury. There are multiple reports from the Veteran that while in prison, he injured his back while lifting a big tub of French toast batter and that he had a pending claim with the state. See VBMS, document labeled CAPRI, receipt date 9/16/2023, page 9 of 43; see VBMS, document labeled CAPRI, receipt date 2/11/2020, pages 144, 167 of 352. Furthermore, there is documentation of the Veteran's later report that he was awarded workman's compensation for his back injury. See VBMS, document labeled CAPRI, receipt date 2/11/2020, pages 214, 349 of 352. More probative value is assigned to the Veteran's statements contemporaneous to service (like his report of medical history at separation) and those provided in the course of receiving treatment because the Veteran's statements made to treatment providers are more persuasive than statements made in pursuit of monetary benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis of treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran's contradictory reports of when the symptoms of his thoracolumbar spine disability began do not support a continuity of symptomatology. Therefore, service connection for the chronic disease is not warranted. For the foregoing reasons, the persuasive evidence is against the claim for service connection for a thoracolumbar spine disability. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for PTSD. 3. Entitlement to service connection for an acquired psychiatric disability, to include schizoaffective disorder, bipolar type. The Veteran seeks entitlement to service connection for an acquired psychiatric disability, claimed as PTSD and schizoaffective disorder, bipolar type. He contends that symptoms began during military service. Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM), Fifth Edition); (2) credible supporting evidence that the claimed in service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in service stressor. 38 C.F.R. § 3.304 (f). If VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's testimony or statements. 38 C.F.R. § 3.304 (f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). For purposes of 38 C.F.R. § 3.304 (f)(3) "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness or horror. The Veteran's records do not demonstrate any medical diagnosis of PTSD. Medical treatment records were reviewed and reveal no treatment or diagnoses pertinent to this condition. Upon review of the Veteran's medical treatment records, PTSD screenings have resulted in a negative assessment. See VBMS, document labeled CAPRI, receipt date 9/16/2023, page 21 of 43 (a June 20, 2013 primary care note documenting a PTSD screening negative score of 0); see VBMS, document labeled CAPRI, receipt date 2/11/2020, page 245 of 352 (a July 22, 2015 preventive risk assessment PTSD screening negative score of 0)). Medical treatment notes documenting a diagnosis of PTSD are based on the Veteran's self-reports, which is not the equivalent to a medical screening and medical diagnosis of PTSD. As such, the Veteran does not have a diagnosis that conforms to the DSM-5 for PTSD. Service connection is not warranted for PTSD. However, the Veteran has been diagnosed with schizoaffective disorder, bipolar type, which includes both anxiety and depression symptoms. As such, the first element required for service connection has been met. With regard to the second element required for service-connection, that of an in-service incurrence, the Veteran's service treatment records (STRs) include the December 17, 1986, military separation report of medical history, on which the Veteran checked the block for depression. The military physician who conducted the Veteran's separation examination noted that the Veteran's depression for two months, roughly two months prior, was due to family problems, now resolved. See VBMS, document labeled STR- Medical, receipt date 2/14/2020, page 3 of 4. Given the aforementioned, the second element required for service connection has been met. In September 2023, the Veteran submitted a private medical opinion. The private clinician provided a positive medical nexus, explaining that as a result of the Veteran's tinnitus, he is now experiencing symptoms consistent with insomnia and anxiety. The clinician explained that they met with the Veteran, who described, in detail, the symptoms that he is currently suffering. However, based on the clinician's statement, it does not appear they reviewed the Veteran's military medical records and post-military medical records to better inform their decision. A post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. See Grover v. West, 12 Vet. App. 109, 112 (1999). The private clinician also cited to a handful of medical literature that supports the relationship between tinnitus, anxiety, and insomnia. However, the clinician does not use the appropriate legal standard of proximately caused by or proximate aggravation. A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Given the aforementioned, the Board does not afford this medical opinion probative weight. In October 2023, the Veteran was afforded a VA medical examination to ascertain whether his anxiety is secondary to his service-connected tinnitus. The examiner provided a negative nexus medical opinion. Specifically, the examiner explained that through the course of the interview, there was no discussion of tinnitus in relation to the Veteran's mental health or otherwise, and that review of the Veteran's available VA mental health records are silent for tinnitus in relation to his mental health. Per DSM guidelines, in order for a mental health condition to be secondary to or proximately related to a medical condition, the condition must cause significant distress and psychological impairment to the claimant and cannot be better accounted for by another mental health condition. As there is no discussion of the relationship between the diagnosis of a mental health condition and the service-connected medical conditions, it is assumed the DSM criteria are not met. Furthermore, there is no pathogenic connection between schizoaffective disorder, a thought disorder, and tinnitus. As such, the examiner opined it is less likely than not that the Veteran's diagnosed schizoaffective disorder, to subsume any anxiety, is proximately due to or the result of the service-connected tinnitus. As the examiner reviewed the Veteran's military medical treatment records, post-military medical treatment records, took into consideration the Veteran's lay statements and reconciled their rationale with substantiated reasoning with supported medical facts from the Veteran's claims file, the Board affords this opinion probative weight. In December 2023, the Veteran was afforded another VA medical examination to determine whether his schizoaffective disorder is secondary to his service-connected tinnitus. The examiner made several findings, noting that there is evidence of mental health treatment during military service for depression, which was the first sign of the current diagnosis of schizoaffective disorder, bipolar type. The Veteran's medical records indicate a long history of mental health treatment for schizoaffective disorder, bipolar type. Although the examiner went on to find no relationship to the Veteran's service-connected tinnitus, ultimately, the examiner did note the in-service symptom of depression and linked it to his current schizoaffective disorder. As the examiner reviewed the Veteran's military medical treatment records and post-military medical treatment records and took into consideration the Veteran's lay statements, and the facts relied upon are true, the Board affords this opinion probative weight. On this evidence, the Board finds that service connection for schizoaffective disorder, bipolar type is warranted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Smith, Associate 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.