DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

MATTHEW W. BLACKWELDER · 2024 · Case ID: 24021729

DENIED

Summary

The veteran, who served in the Army from August 1979 to August 1982, appeals the denial of service connection for a lumbar spine disability and an acquired psychiatric disorder other than PTSD, as well as a temporary total disability rating. The veteran claimed his lumbar spine disability stemmed from an in-service injury while skiing and from physically arduous duties. He also claimed his psychiatric disorder, including major depressive disorder and substance abuse disorder, arose from stressful in-service events and self-medication. The Board found the evidence failed to establish a causal link for the lumbar spine disability, noting the veteran's current condition appeared age-related and superseded by significant post-service physical labor and injuries. While the Board acknowledged the veteran's reported in-service hardships and subsequent psychiatric symptoms, it found the medical evidence, particularly VA examinations, indicated his current disorders were more likely caused by recent life events and chronic pain, not service. The Board accorded less probative value to a private psychological opinion that linked the conditions to service, citing its reliance on incomplete facts and the veteran's self-serving statements. Consequently, service connection for the lumbar spine and psychiatric conditions, as well as the temporary total disability rating, were denied.

Rationale

No objective clinical evidence of residuals from in-service injuries or chronic lumbar pathology during service.; Current lumbar spine degeneration is most common form of spinal arthritis, usually caused by age-related wear and tear.; Significant post-service physical occupations and injuries superseded alleged in-service injuries.; Continuity of symptoms broken by lack of post-service complaints until May 2008.

Service Branch

ARMY

Special Benefit

TEMPORARY TOTAL (§4.30)

Docket No.

18-47 992

Full Decision Text

Citation Nr: 24021729
Decision Date: 05/31/24 Archive Date: 05/31/24

DOCKET NO. 18-47 992
DATE: May 31, 2024

ORDER

Service connection for a lumbar spine disability is denied.

Service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include major depressive disorder and substance abuse disorder in full sustained remission, is denied.

A temporary total disability rating under 38 C.F.R. § 4.29 and § 4.30 is denied.

FINDINGS OF FACT

1. The evidence of record fails to show that it is at least as likely as not that the Veteran's current lumbar spine disability was incurred in service, manifested within one year from the date of his discharge, or otherwise is causally related to service.

2. The evidence of record fails to show that it is at least as likely as not that the Veteran's major depressive disorder and substance abuse disorder in sustained full remission was incurred in or caused by service, nor was caused by or proximately resulted from any service-connected disability.

3. The evidence of record fails to show any service-connected disability requiring hospitalization and/or convalescence.

CONCLUSIONS OF LAW

1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309.

2. The criteria for service connection for an acquired psychiatric disorder other than PTSD have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310, 4.125.

3. The criteria for a temporary total disability rating based on hospitalization and convalescence have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.29, 4.30.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran honorably served on active duty from August 1979 to August 1982. In a September 2014 rating decision, the Regional Office (RO) denied his claim for service connection for an acquired psychiatric disorder other than PTSD and a lumbar spine disability, which the Veteran did not appeal. In March 2016, the RO denied his petition to reopen his claim for a spine disability. In February 2017, the RO denied his petition to reopen his claim for a psychiatric disorder and original claim for a temporary total rating due to hospitalization under the regulatory provisions of 38 C.F.R. § 4.29 and subsequent convalescence under § 4.30. The Veteran perfected his appeal of the March 2016 and February 2017 rating actions and requested a Board hearing. In an April 2022 correspondence, his representative of record informed the Board that the Veteran waived his right to a hearing, wished to withdraw his hearing request, and instead requested the Board to decide his claim based on the evidence of record.

In March 2023, upon finding new and material evidence, the Board reopened service connection for his psychiatric and spine disabilities, and then remanded the claim for further development, to include obtaining potentially relevant medical records from Social Security Administration (SSA), which were procured in March 2023, and obtaining etiological opinions which were procured in April, November, and December 2023. Upon reviewing the newly obtained evidence, the Board finds that the RO has substantially complied with the Board's remand instructions.

Lumbar spine disability

In seeking service connection for his lumbar spine disability, the Veteran's chief contention is that he injured his back by slamming into a tree while skiing during his unit's cold-weather training in Alaska. He explains that no medical treatment was available in the field. This is why he was not seen or treated until returning to his permanent duty station at Fort Carson, Colorado. He further indicated that his physically arduous military duties as an infantryman often required him to run with a backpack and his lower back was also hurt during such training. Since then, he reports having experienced lower back pain which he asserts has been continuously present since service.

Service connection generally may be granted for a current disability incurred in or incidental to service. 38 C.F.R. § 3.303(a). "Service connection" is a term of art connoting many legally complex concepts, but in-gist refers to a current disability shown to had been incurred due to a disease or injury sustained in service. Id. As such, service connection is not automatically granted for every sign, symptom, complaint, injury, disease, treatment, or diagnosis documented in or conceivably related to
as an infantryman often required him to run with a backpack and his lower back was also hurt during such training. Since then, he reports having experienced lower back pain which he asserts has been continuously present since service.

Service connection generally may be granted for a current disability incurred in or incidental to service. 38 C.F.R. § 3.303(a). "Service connection" is a term of art connoting many legally complex concepts, but in-gist refers to a current disability shown to had been incurred due to a disease or injury sustained in service. Id. As such, service connection is not automatically granted for every sign, symptom, complaint, injury, disease, treatment, or diagnosis documented in or conceivably related to service. Rather, establishing entitlement to this benefit generally requires the evidence of record to show: (1) the claimed disability; (2) a relevant in-service injury, and (3) a causal link between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Here, the Veteran's VA treatment records are replete with the clinical diagnoses of the lumbar spine arthritis, osteoarthritis, spondylosis, stenosis, and lower extremity radiculopathy, initially diagnosed in 2011, which satisfies the requisite existence of the claimed disability. The Veteran reported a lower back injury due to slamming into a tree while skiing and another injury after running with a backpack, which is consistent with the circumstances of his military service and thus at minimum is conceivable. VA accordingly requested medical examinations to evaluate the etiology of the Veteran's back disability. Unfortunately, the medical opinions to that end turned out negative in this case.

In sum, upon considering the Veteran's reported lower back injuries sustained in service, three independent medical examiners found no objective clinical evidence of any residuals of those injuries or chronic lumbar spine pathology at any time during service and for many years thereafter. His current lumbar spine disability is the most common form of spine degeneration, which the examiners explained was usually caused by general wear and tear over many years. In addition to age-related general wear and tear of his spine after service, the Veteran had been employed in physically arduous occupations placing additional stress on his lower spine for many years (including trucking, construction, park and lawn maintenance), requiring him to lift, carry, and operate heavy machinery and equipment on a daily basis, while frequently carrying heavy items weighing 50 pounds or more and at times exceeding 100 pounds. He also sustained several back injuries lifting and moving furniture and one back injury while cutting the yard prior to being clinically diagnosed with spine degeneration. As such, the evidence of record viewed as a whole ultimately fails to show that the Veteran's current back disability began in service, manifested within one year from the date of his discharge, or otherwise is causally related to his service.

The only relevant sign of any in-service injury or disease that may be reasonably associated with his back is his single documented complaint of lower back pain for 3 days in July 1980, per Veteran's very own report at the time, due to an "unknown reason" which was assessed as a "possible muscle strain" with "the onset of lower back pain upon physical exertion after digging a drainage ditch for 2 days and no history of previous back problems."

His service treatment records (STRs) further reflect that three days later and for the following seven days, the Veteran had undergone routine daily health checks which turned out okay without any noted or reported sequalae of his lower back pain. For the following two years of his service, his STRs are devoid of any indicia that may suggest any ongoing back problems. Likewise, his post-service medical treatment records are devoid of any objective evidence of lower back pain until May 2008.

Absent any associated complaints, signs, symptoms, treatments, or diagnoses prior to May 2008, beyond a single episode of lower back pain due to a possible muscle strain, following which the Veteran continued to perform his physically arduous military duties as an infantryman for two years and his no less physically arduous civilian occupations for many years without any apparent limitations for his back, it is most likely that his lower back injuries in service were self-limiting. This much is reflected in a September 2014 VA examination report.

The examiner further opines that a remote back strain would not be responsible for the degenerative changes of the spine with initial onset over 25 years later. This examiner explains that, absent any objective findings that may be consistent with a high-energy injury or intra-disc pathology, otherwise conceivable post-traumatic process is not likely. Even if the Veteran had sustained any repetitive microtrauma generally associated with the physically arduous military duties, such as wearing a backpack, the medical
infantryman for two years and his no less physically arduous civilian occupations for many years without any apparent limitations for his back, it is most likely that his lower back injuries in service were self-limiting. This much is reflected in a September 2014 VA examination report.

The examiner further opines that a remote back strain would not be responsible for the degenerative changes of the spine with initial onset over 25 years later. This examiner explains that, absent any objective findings that may be consistent with a high-energy injury or intra-disc pathology, otherwise conceivable post-traumatic process is not likely. Even if the Veteran had sustained any repetitive microtrauma generally associated with the physically arduous military duties, such as wearing a backpack, the medical literature in point suggests that the duration threshold value of such microtrauma exposures is at least 10 years before it becomes statistically significant in contrast to the Veteran's service of 3 years.

As reflected in a September 2019 VA examination report, another examiner opines that it is less likely as not that the Veteran's current lumbar spine disability was incurred in service because a one-time back muscle strain in 1980 would be self-limiting and would not cause lumbar spine denegation without any subjective or objective initial signs prior to 2008. This examiner further opines that the Veteran's current spine degeneration is most consistent with aging process and more so than his report of back injury in service, which could not be as serious as the Veteran purports it to be and would be insufficient to cause his spine's degeneration first diagnosed in 2011, which is almost 30 years after his service.

In the intervening years, as reflected in his SSA disability claim signed under the penalty for perjury, the Veteran had been employed in physically demanding occupations for many years, to include trucking for 10 years, construction for three years, park maintenance for three years, and again in construction for almost four years. Particularly in his last two positions held for approximately seven years, the Veteran indicated that his jobs required him to lift items in excess of 100 pounds at a time, while also as frequently as daily lifting heavy machinery and carrying heavy items weighing 50 pounds or more. This evidence shows significant events placing undue stress on his lower spine and superseding his alleged injuries many years earlier. This finding is further strengthened by the timing and context of his initial post-service complaint of back pain in May 2008.

In January 2008, the Veteran enrolled in the VA health care, without any noted or reported significant medical history beyond GERD, fracture of the jaw and knee, and substance abuse. While seen for multiple complaints thereafter, not until May 2008, was he seen for his lower back pain with reported onset two weeks earlier, when he was moving some furniture. By then, he was in his late forties, working in construction, while "lifting and moving items such trash cans, bins, [and] debris" weighing 50 pounds or more on a daily basis and at times exceeding 100 pounds. In May 2011, by which time he was in his early fifties while continuing his work in construction, he again was seen for lower back pain.

The August 2011 radiology report reflects an impression of stable lumbar spine with moderate spondylosis (a medical term used for the age-related general wear and tear) demonstrated on the left side at L4-L5. The vertebral bodies were noted in a good anatomic alignment. The vertebral body heights were noted as preserved and the intervertebral disc spaces were intact. The visualized pedicles and spinous processes were also unremarkable.

Under the pertinent subjective history/injury mechanism section, radiologist noted the Veteran's report that he had a low back injury about three years earlier (which is wholly consistent with his initial complaint to VA three years earlier) when he was moving some furniture. He further reported that about six months earlier, he again started having low back pain. He also reported that he was cutting the yard a few days ago, and now he is feeling pain in the right hip and groin area.

In September 2011, he further underwent an MRI study showing L2-L3 right foraminal disc herniation compressing the right L2 nerve root and L4-L5 mild-to-moderate left neural foraminal stenosis due to spondylosis with touching and possible impingement of the left L4 nerve root. At that time, he reported that he felt lower back pain when lifting a couch at home about hour and a half earlier and confirmed that he also injured his back while moving some furniture three years earlier. These VA medical treatment notes are also consistent with the Veteran's reports to the SSA of the onset of his lower back problems with radiculopathy in 2011, when he was diagnosed with lum
In September 2011, he further underwent an MRI study showing L2-L3 right foraminal disc herniation compressing the right L2 nerve root and L4-L5 mild-to-moderate left neural foraminal stenosis due to spondylosis with touching and possible impingement of the left L4 nerve root. At that time, he reported that he felt lower back pain when lifting a couch at home about hour and a half earlier and confirmed that he also injured his back while moving some furniture three years earlier. These VA medical treatment notes are also consistent with the Veteran's reports to the SSA of the onset of his lower back problems with radiculopathy in 2011, when he was diagnosed with lumbar spine spondylosis.

A November 2023 VA examination report reflects a third examiner's opinion that lumbar spondylosis, also known as degenerative disk disease and osteoarthritis, is a medical condition that is the most common form of spinal arthritis usually caused by an age-related degeneration of the spinal vertebrae and disks through wear and tear over time. This examiner explains that a single subjective complaint of lower back pain coupled with an objective determination of possible muscle strain during his service in 1980 is not enough to establish the presence of any chronic lumbar spine condition during his service.

This examiner acknowledged the Veteran's report that his back pain began in 1982 while he was still in service. He stated that he started to experience back pain after training, which was caused by running with heavy backpacks on his back along with his earlier back injury during his training in Alaska, when he was skiing and hit his back on a tree. He reported he did not receive any medical attention at the time of the injury because there was no sick call out in the field, but he did go on sick call several times complaining of back pain during his service, for which he received pain medication and rest as treatment. He continued to experience back pain up until now. The examiner further noted the Veteran's statement that, on examination in September 2014, he misunderstood the examiner's question about the onset his back pain which he reported at the time about 3-4 years ago, whereas his back pain actually began in service and has been continuous ever since then.

It is conceivable that the Veteran's injuries in the field would not be documented in his STRs right away. However, his report that he went on sick call several times for his lower back and developed chronic back pain during service is unpersuasive, particularly in light of other multiple scrupulously documented complaints and treatments unrelated to his back, to include the details and circumstances of his other injuries and ailments. For example, his STRs reflect a May 1982 sick call note for injuring his right hand while playing basketball one day ago, a March 1981 note of superficial laceration of the right second digit due a knife cut, a February 1980 note of mild tenderness and swelling of upper feet for 3 days due to wearing "V.B." (vapor barrier/cold weather) boots, a May 1980 note of left leg pain 15 minutes after hitting his leg in a motor pool, a May 1980 note for vomiting and diarrhea for 2 hours, or a May 1982 note of injuring his right wrist with pain under his thumb and 2nd and 3rd digits after playing basketball and being seen for the same complaint 3 days later. Additionally, his STRs reflect at least half a dozen of other repeat and follow-up sick call visits for the same problem within days of initial complaints.

This evidence shows that it is more likely than not that the Veteran was not discouraged from going to sick call, would not be denied the needed medical care when available, and any associated complaints, signs, symptoms, impressions or diagnoses would be documented in his STRs. By implication, it is unlikely that the Veteran's alleged several sick calls for his lower back and his chronic lower back pain, unlike many other medical issues, would not be documented in his STRs, if he in fact had developed and complained of chronic lower back pain in service.

Even if the Board were to accept the Veteran's reported injuries and chronic back pain since service at a face value, such a concession would not alter the fact that, from the medical perspective, three examiners found no objective clinical evidence of any residuals or pathology which reasonably may have precipitated his current spine degeneration many years later.

Any residual doubt to that end is effectively rebutted by the substantial evidence of multiple significant post-service superseding causes, to include several lower back injuries sustained while lifting furniture, one back injury cutting the yard, while also frequently lifting and carrying loads of 50 pounds or more on a daily basis for at least seven years when he already was of advanced age. These facts support the examiners' reasoning that the Veteran's lumbar spine degeneration is age-related, while the microtrauma to his lower spine over the aggregate period of more than 10 years is consistent with his physically arduous civilian occupations and more so than with his military service of 3 years without any objective clinical signs or symptoms of spine degeneration which was noted only after many years of post-service physical exertion.

Likewise, there is no single subjective complaint of lower back pain documented in his VA treatment records between May 2008 and May 2011, beyond the Veteran's May 2011 report of back pain onset approximately six months earlier, which affirmatively shows no back pain for approximately two and a half years between June 2008 and February 2011 and thus ultimately breaks the alleged continuity of chronic back pain since service.

Further, although the Veteran may competently report any subjective signs and symptoms, such as lower back pain he may have experienced, absent specialized knowledge, training, or experience, he is said not to possess the requisite expertise to diagnose medical conditions, attribute his symptoms to particular pathology, render other medical opinions, or establish medical basis for service connection. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). This is why particularly in cases, like this, presenting a medically complex musculoskeletal disability attenuated from service by many years along with substantial evidence of multiple superseding causes, the Board must primarily rely on medical expertise.

No competent, namely medical evidence of record shows, or even suggests, a causal link between most likely self-limiting back pain at most only suspected of possible muscle strain and the skeletal deterioration many years later, albeit in the same anatomical localization. Directly in point, the regulations are unequivocal in that service connection for arthritis initially diagnosed many years after service may not be established on the sole basis of pain in the same joint during service, unless the evidence of record shows a combination of manifestations sufficient to identify both the clinical entity of the disease and its chronicity during service. 38 C.F.R. § 3.303(b). This is why VA requested medical opinion to that end and three examiners opined that the record is devoid of any objective clinical evidence to causally link his current spine disability to service. One examiner further made it very clear that a single documented episode of transient lower back pain suspected of muscle strain, even if coupled with the Veteran's subjective report of additional injuries and chronic back pain ever since service but without any corroborating objective clinical evidence, is not enough to establish any chronic lumbar spine pathology during his service.

By implication, absent any objective clinical evidence showing that the Veteran's current lumbar spine disability manifested in service or within one year from the date of discharge, which otherwise would permit a grant of service connection, leaves the Board with the three negative medical opinions that it is less likely as not that the Veteran's current lumbar spine disability first diagnosed many years after service is etiologically related to his service and the Veteran's belief to the contrary. See 38 C.F.R. §§ 3.303(a), (b), (d), 3.307(a), 3.309(a).

The largely aligned medical opinions are the only competent opinions of record in point and substantially outweigh the Veteran's own unqualified and unsubstantiated belief that his military service caused his current lumbar spine disability. To this extent, the appeal is denied.

Psychiatric disability

Of preliminary note, the most recent report of VA mental health examination in April 2023 reflects the clinical diagnoses of major depressive disorder, recurrent, moderate, and substance abuse disorder in sustained full remission. As reflected in a February 2019 statement in support of claim, the Veteran is contending that his acquired psychiatric disorder other than PTSD, namely an unspecified depressive disorder (later diagnosed as a major depressive disorder) is related to his physical health deterioration, to include due to pain associated with his current lumbar spine disability rending him unemployable and making him very depressed. To this end, the medical evidence of record persuasively shows that it is at least as like as not his case. Unfortunately, however, secondary service connection may be granted only for the disability caused by another underlying disability with established service connection. 38 C.F.R. § 3.310(a). The Board's finding that the Veteran's current back disability is not service connected is dispositive here. This leaves the Board with consideration of the Veteran's depressive and substance abuse disorders on a direct basis.

In seeking direct service connection, as reflected in his August 2018 statement in support of claim enclosed with his September 2018 substantive appeal (VA Form 9), the Veteran's essentially is contending that he had a good family life, good friends, did well in school, played sports, and joined the Army without any history of psychological disturbances, then had onset of anger, anxiety, and depression for the first time in his life during basic training, thereafter "was constantly stressed and on edge" and "felt like everyone was out to get" him. While in service, he turned to using a lot of cocaine to self-medicate his depression. After discharge, he had a lot of problems due to his anger issues, continued to abuse cocaine, and his "service in the military truly ruined [his] life."

Although the Board does not doubt the firmness and sincerity of the Veteran's belief, service connection may be granted only upon satisfying very specific legal criteria. Entitlement to service connection for an acquired psychiatric disorder other than PTSD requires the evidence of record to show: (1) the diagnosis of the claimed psychiatric disorder under the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (2013), as set by the American Psychiatric Association (APA)); (2) the relevant traumatic event(s) in service, and (3) a causal link between the current disorder and in-service trauma. See Martinez-Bodon v. McDonough, 28 F.4th 1241 (Fed. Cir. 2022). Particularly in cases, like this, involving medically complex psychiatric disorders clinically diagnosed many years after service, the Board reiterates that it must rely on medical expertise.

The April 2023 VA mental health evaluation report reflects the diagnosis of major depressive disorder. A November 2018 report further reflects the most recent diagnoses of a stimulant use disorder (cocaine) initially diagnosed in 2008 and in sustained full remission (for six years since last use in 2012). As such, the current diagnoses of the claimed disorders adhering to the DSM-5 are not in dispute. However, although from laymen perspective it is apparent that the Veteran's had encountered some hardships during his service, the medical evidence of record ultimately fails to show that it is at least as likely as not that the hardships he faced during his service were sufficient to cause him psychological distress resulting in his depressive disorder and his substance abuse.

The snapshot of his military service captured in his August 2018 statement in support of claim does suggest that he had stressful and emotionally tolling time in service. The Veteran indicated that, during his basic training in October 1979, he sustained a lacerated lip after being "sucker-punched" in the face by a fellow basic trainee and was taken to a hospital because his lip would not stop bleeding. This is when he had onset of depression, anxiety, and anger. Right after basic training, he went home on leave for about 10 days and did not want to go back because "they weren't looking out for [his] best interests." He "was just property to the military." He started getting "really bad mood swings" and getting "really irritable and angry."

Then, having never been in cold weather before, he was assigned to Fort Carson, where it was snowing, which made him more depressed. He did not do well in the snow and started getting an attitude with others, due to poor treatment by officers. He got into a verbal altercation with his superior officer and got locked up in the stockade for about two months. After getting out, he was sent on leave because his paperwork could not be located and eventually was reassigned to another unit
10 days and did not want to go back because "they weren't looking out for [his] best interests." He "was just property to the military." He started getting "really bad mood swings" and getting "really irritable and angry."

Then, having never been in cold weather before, he was assigned to Fort Carson, where it was snowing, which made him more depressed. He did not do well in the snow and started getting an attitude with others, due to poor treatment by officers. He got into a verbal altercation with his superior officer and got locked up in the stockade for about two months. After getting out, he was sent on leave because his paperwork could not be located and eventually was reassigned to another unit. This caused a lot of problems with getting his paycheck and he had to keep returning to his old company to get paid, while there he was constantly berated for being locked up and many times would be refused his pay. He was constantly stressed and on edge.

Then, he was sent to Europe. In September 1981, while in Germany, he attended a dance at the officers' club, where a mass brawl ensued and he got "blindsided in the face with a beer bottle." He was taken to a hospital, where he got "stitched up." This affected him "greatly" and made him "want to get out of the service" because he "felt like everyone was out to get him."

After he got stitches all over his face, "they" made him go back in the field, where he had to put a gas mask on and run around the woods. It was miserable. Each of these events caused him a lot of emotional harm. For the remainder of his service, he was constantly on edge, angry, depressed, anxious, and could not wait to leave the military because he was tired of being repeatedly abused. With that, the Veteran concludes that his service "truly ruined [his] life."

The Board further acknowledges the Veteran's statements to his VA medical care providers, expressing his anger and frustrations with VA for denying him the sought benefits. The Board doubts neither the firmness nor sincerity of his belief in entitlement to VA benefits. Similarly, the Board does not doubt that the Veteran's belief that his military service "truly ruined" his life.

Yet, he apparently had not expressed this sentiment at any time prior to filing his claim for VA benefits. Remarkably, the November 2018 mental health evaluation report reflects a psychologist's explanation that an extended illegal abuse of mood-altering substances often creates previously non-existent psychosocial stressors that may mimic depressive, anxious, and other psychiatric symptoms which can continue to persist even after sustained abstinence. This medical opinion explains the reasons why the Veteran may feel that his service is the culprit for many of his ordeals.

The Veteran's STRs do confirm the injuries to his upper left lip in October 1979 and multiple lacerations on the left side of his face requiring sutures in September 1981 along with a follow-up note two days later reflecting a specific instruction not to wear a gas mask. His MPRs further confirm that the Veteran resided in Florida prior to joining the Army and after basic training served on Fort Carson, Colorado, where he was court martialed, incarcerated, transferred to another unit down the street, and then transferred to Germany in August 1981.

However, beyond these basic documented facts, parsing out the Veteran's narrative around those facts of how he felt at the time and whether his feelings caused any clinically significant psychological distress responsible for his depressive and substance abuse disorders ultimately requires specialized expertise in such fields as clinical psychology or psychiatry, which the Veteran does not appear to possess.

Of particular note, such feelings as anger, anxiety, and depression are commonly known natural human emotional reactions to stress. Yet, having experienced such feelings as anxiety and depression during the periods of stress are not synonymous with having developed chronic anxiety and depression disorders, which ultimately are beyond the competence of lay persons and the Board's legal expertise. This is why the Board turns to the medical evidence of record.

As reflected in the November 2016 treatment notes, November 2018 and April 2023 examination reports, and a December 2023 addendum, at least one VA treating psychiatrist and two examining clinical psychologists all opine that it is less likely as not that the Veteran's current psychiatric disability is etiologically related to any aspect of his service and most likely caused by his more recent life events. The only competent evidence of record to the contrary is the private psychological evaluation report (prepared by Dr. J.H.P., Psy.D., and submitted in May 2022), reflecting an opinion that the Veteran's depressive disorder is a direct result of his military service based on the stressful events to which he was exposed in service and it is at least as likely as not that the Veteran
treatment notes, November 2018 and April 2023 examination reports, and a December 2023 addendum, at least one VA treating psychiatrist and two examining clinical psychologists all opine that it is less likely as not that the Veteran's current psychiatric disability is etiologically related to any aspect of his service and most likely caused by his more recent life events. The only competent evidence of record to the contrary is the private psychological evaluation report (prepared by Dr. J.H.P., Psy.D., and submitted in May 2022), reflecting an opinion that the Veteran's depressive disorder is a direct result of his military service based on the stressful events to which he was exposed in service and it is at least as likely as not that the Veteran's drug use was self-medication for his depressive disorder which originated in service.

The latter opinion essentially is based on the premise that the Veteran was a good kid prior to joining the Army, had initial onset of anger, anxiety, and depression in service, during which he felt constantly stressed and on edge, developed further depression, and then began self-medicating his depression with cocaine, as detailed in his August 2018 statement in support of claim discussed above. However, while the private psychologist largely relies only on those statements and without any consideration given to the Veteran's very own early statements and other material evidence of record viewed as a whole, the Veteran's story that he had a good family life, good friends, did well in school, played sports, and joined the Army without any prior psychological issues, begins to crumble at the very outset.

His STRs, MPRs, the November 2018 and April 2023 examinations reports, a December 2023 addendum, and the VA psychiatric evaluations and mental health treatment notes from 2008 to 2018, collectively paint a different picture.

The Veteran had serious difficulty dealing with his parents' divorce at a young age (of 10 or 11) and lied to his friends about it. He lived with each parent at different times, felt particularly bad for his father, but never shared his feeling and thoughts with either parent. He also felt like the "black sheep" among his eight siblings. Especially after the divorce, his family fell on hard times, while he had to work to buy clothing and provide for himself. By the age of 13, he began using substances, to include alcohol, tobacco, and cocaine. Subsequently "getting in trouble a lot," he was "kicked out of high school" and eventually "went into the military to avoid further trouble."

After joining the military in August 1979, he continued to get into a lot of trouble, to include due to communicating insults and threats, disrespecting his superior non-commissioned officers and commissioned officers alike, was court-marshalled, convicted of, and incarcerated for violations of the U.C.M.J., to include for charges of multiple counts under the Articles 15, 86, 89, 90, 91, and 134, that is, during his first year in service alone.

After serving the imposed penalties, to include incarceration, reductions in pay and grade, his service was largely unremarkable until he transferred to Germany, where he got caught in a mass bar brawl and was hit with a beer bottle across the left side of his face in September 1981. A few months later, he again was convicted and demoted, while part of his pay was seized. At the time of his psychiatric treatment, the Veteran reported that he was "doing fine upon discharge from the military in 1982 until "getting caught in the streets." This is when the "things began falling apart."

This included illegal substance abuse, a five-year incarceration for a robbery from 1994 to 1999, and a failed marriage concluding with a year-long incarceration for domestic violence in 2008. Then, while trying to stay sober and to get his life on track, he severely injured his back, developed other physical limitations, and could no longer work, at which point he relapsed to using crack cocaine in 2012. He then enrolled in the VA substance abuse recovery treatment program, while continuing to experience difficulties in coping with depression associated with his mother's failing health, his own aging, and a very tragic death of one of his sons in August 2018.

The lone fact that the Veteran apparently was traumatized by his parents' divorce while feeling like the "black sheep" in the family places a substantial dent into his later assertion that he had "a good family life." No more persuasive is his assertion that he had "good" friends while he reported to his psychiatrist that he had "many" friends, but "got in trouble a lot" and "joined the military to avoid further trouble." Nor does his assertion that he "did well in school" align with his earlier report to his psychiatrist that he
treatment program, while continuing to experience difficulties in coping with depression associated with his mother's failing health, his own aging, and a very tragic death of one of his sons in August 2018.

The lone fact that the Veteran apparently was traumatized by his parents' divorce while feeling like the "black sheep" in the family places a substantial dent into his later assertion that he had "a good family life." No more persuasive is his assertion that he had "good" friends while he reported to his psychiatrist that he had "many" friends, but "got in trouble a lot" and "joined the military to avoid further trouble." Nor does his assertion that he "did well in school" align with his earlier report to his psychiatrist that he "was average student" and "was kicked out of high school," while his scores on the Armed Forces Qualification Test (AFQT) reflected in his MPRs were considerably below the average.

The private psychologist's report has not even acknowledged this information, let alone reconciled any discrepancies. As such, the opinions expressed therein were based on the incomplete facts and very limited clinical review largely relying on the Veteran's own unqualified opinions and uncorroborated statements. Moreover, the private psychologist's rationale essentially amounts to an explanation that the Veteran developed depressive disorder because he said that he felt stressed and depressed during service and his substance abuse is secondary to that depressive disorder because the Veteran said he used cocaine to self-medicate his depression.

Notwithstanding the presumed competence of the private psychologist, the most probative value of any medical opinion is derived from its rationale rather than the author's credentials. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A medical opinion exclusively relying on the Veteran's own lay statements on the matters requiring medical expertise carries no more probative value than those statements. A medical opinion formed on the basis of incomplete and inaccurate facts carries no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

In contrast, upon considering all pertinent evidence of record, the two examining psychologists opine that the Veteran's depressive disorder is most consistent with his chronic pain and current life events. The first clinically significant signs and symptoms of his depressive disorder do not appear at any time prior to his abstinence from cocaine in 2008. Likewise, the record is not merely devoid of any reference to depression but also shows the Veteran's affirmative denial of any associated symptomatology and his VA screening for depression was negative prior to the onset of his back problems. Moreover, neither his depressive disorder clearly related to his back and more recent life events nor his substance abuse disorder in sustained full remission may be causally linked to his service.

The Veteran's STRs are devoid of any mental health evaluations or treatments. His STRs and MPRs are further devoid of any indicia of substance abuse or treatments during service. Nor do his post-service medical records reflect any treatment prior to 2000, when he initially enrolled in a non-VA community care 18 years after his service.

Moreover, while undergoing his psychiatric treatment at the VA on and off since 2008, he has not even once mentioned any fights in the military or any other events that may be reasonably construed as a psychological trauma. The December 2023 addendum reflects a psychologist's opinion that the Veteran's silence in point for many years is indicative of no lingering psychologically significant impact of his service. Otherwise, if his service had any significance to the extent of traumatic impact, the Veteran necessarily would have reported any relevant in-service events at the outset of his treatment. However, he did not do so until many years later and only after he filed his claim for VA benefits, which renders his assertions that he began using cocaine in service less reliable than his earlier statements.

Particularly in cases where the story evolves over time, the Board may assign more probative value to treatment records that include lay history reported for treatment purposes than to the later conflicting statements made for the sole apparent purpose of procuring VA benefits. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Although the Board may not discount the Veteran's statements solely because he stood to benefit from the favorable story he has told, the Board may not simply ignore self-interest in procuring VA benefits viewed in light of other pertinent factors such as timing, fora, and purpose. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Of particular note, while acknowledging the Veteran's report of beginning to abuse substances during his service, the psychologist specifically notes the Veteran's report made to his treating psychiatrist many years earlier that he began abusing substances at the age of 13, to include cocaine.

Of further note here are the timing and forum of the Veteran's
390, 394 (1994). Although the Board may not discount the Veteran's statements solely because he stood to benefit from the favorable story he has told, the Board may not simply ignore self-interest in procuring VA benefits viewed in light of other pertinent factors such as timing, fora, and purpose. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Of particular note, while acknowledging the Veteran's report of beginning to abuse substances during his service, the psychologist specifically notes the Veteran's report made to his treating psychiatrist many years earlier that he began abusing substances at the age of 13, to include cocaine.

Of further note here are the timing and forum of the Veteran's assertion that he began using substances during his service. Not only contrary to his earlier reports that he started abusing when he was 13, he told a different story only during his Compensation and Pension (C&P) examinations and for the sole apparent purpose of procuring VA benefits well after at least seven years of treatment devoid of a single reference to his later alleged emotional hardships during service. The timing and purpose of those statements serving no other apparent purpose than his self-interest carry substantially lesser probative value than his very own competing earlier statements made for treatment purposes, which are considered exceptionally trustworthy due to strong motive to tell the truth in order to receive proper medical care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997).

Given the Veteran's multiple conflicting statements as to when exactly he started using substances, the Board accords the most probative weight to his statements made for substance abuse treatment purposes and much closer in time proximity to the events at issue than his much later conflicting statements that he began using cocaine during service, which was made for the sole apparent purpose of procuring VA benefits.

It is further apparent that the Veteran "got in trouble a lot" prior to service. Neither getting punched in the lip nor being hit on his head with a beer bottle means that he actually developed chronic mental disorder due to those events. To the contrary, the psychologist opines this is not a reasonable conclusion to make especially in his case, since his VA psychiatric treatment records (2012-2018) mention his military service in passing which his psychiatrist dubbed as "unremarkable," but noting his childhood trauma due his parents' divorce while observing that he got visibly upset when discussing this topic and opining this is the first example when the Veteran began limiting his expressions and internalizing his emotions, and then focusing exclusively on his more recent life events.

Per examining psychologist, the fact the Veteran did not even once mention his fights in service during his VA treatment intake or for the following seven years, which he most likely would have reported if that bothered him at all, affirmatively shows that the military events did not contribute to his initial signs of depression many years later following two incarceration, divorce, drug abuse, declining health, relapse, poor finances, and personal tragedy. If the Veteran getting into fights in 1979 and 1981 or any other aspect of his service caused as much distress and he, his legal team, and the private psychologist are claiming, then he would have necessarily mentioned these events at the onset of his psychiatric treatment. But he did not.

The examining psychologist reiterates the Veteran's report that he is depressed and unhappy with his current life, mainly because of his physical limitations due to numerous medical issues, to include migraines, back arthritis pain, and chronic leg pain. In August 2018, one of the Veteran's sons was killed by his son's wife, while his 7-year-old grandson was watching. The examiner at some length discussed the Veteran's history, noting the Veteran's reports to the examiners and VA that his military service was very stressful, including punishments for multiple violations of the U.C.M.J., for which he had been incarcerated.

However, per May 2012 psychiatric evaluation, he has been diagnosed with lower back pain with imaging findings consistent with his symptoms. At that time, his psychiatrist determined that "his depressive symptoms are closely linked to his level of pain; in fact, [the Veteran] states: 'That's exactly what it is.'" His psychiatrist further opined that the Veteran's self-image closely linked to his physical capabilities caused him to experience a loss of his identity. Given his limited coping skills and pain, he noted intermittent drops in mood. He endorsed moderate symptoms of depression which neither is present continuously nor is causing a functional decline. Therefore, his symptoms do not meet the DSM-5 criteria for a mood or anxiety disorder.

His SSA medical records further include an SSA psychological evaluation report reflecting that the Veteran's psychiatric symptomatology is secondary to his back disability, while he has "zero anxiety symptoms" which may have been reasonably associated with a PTSD due to personal assaults during service, and without any other substantial psychiatric symptoms beyond
Veteran] states: 'That's exactly what it is.'" His psychiatrist further opined that the Veteran's self-image closely linked to his physical capabilities caused him to experience a loss of his identity. Given his limited coping skills and pain, he noted intermittent drops in mood. He endorsed moderate symptoms of depression which neither is present continuously nor is causing a functional decline. Therefore, his symptoms do not meet the DSM-5 criteria for a mood or anxiety disorder.

In October of 2012, shortly before he last date of employment, he relapsed back to using crack cocaine and again sought psychiatric treatment. Per November 2016 discharge report, following extensive psychiatric treatment for working diagnoses of persistent depressive disorder, intermittent explosive disorder with persistent maladaptive trains, unspecified insomnia, and cocaine use disorder in sustained full remission, among current stressors for his inability to stay asleep with frequent awakenings were his chronic back pain and his inability to work because of that pain. While noting his report of the initial signs of depression only after achieving sobriety in 2008, the examining psychologist again points out that the Veteran is having difficulty in reconciling with getting older and his mother's declining health rather than any events during his military service.

Upon further noting the private psychologist's opinion that the Veteran's depressive disorder was incurred during service and his substance abuse disorder is secondary to his depressive disorder, the psychologist concludes that the Veteran's diagnosis of depression at least as likely as not is related to his recent life stressors including his son dying (when he initially endorsed suicidal ideation after this event) and injuring his back disability in 2011 (when he went to mental health for depression and complained about his back in 2012).

The only endorsement to the contrary is the private psychologist's opinion based on the Veteran's own statements in support of his claim. In considering the probative value of medical opinions, the Board considers such factors as accuracy and completeness of the facts relied upon, the depth and detail of the analysis, the soundness of the rationale connecting data to conclusions, and the veracity and the scope of the ultimate conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). Upon considering these factors, notwithstanding the private psychologist's credentials, the private report carries substantially lesser probative value than VA reports offering more detailed and thorough analysis, while relying on the accurate facts and connecting gathered data to ultimately reached conclusions by providing the sound rationale. As such, the Board finds that the negative medical opinions substantially outweigh the lone competing private opinion and therefore it is less likely as not that the Veteran's depressive disorder and substance abuse disorder are causally related to his service. Therefore, service connection for depressive and substance abuse disorders must be denied.

By implication, the Veteran's claim for a temporary total disability rating due to hospitalization and convalescence required for his psychiatric treatment under the regulatory provisions of 38 C.F.R. § 4.29 and 4.30, which provide those benefits only for service-connected disabilities, also must be denied.

The Board emphasizes its sympathies to the Veteran's circumstances, to include his efforts to stay sober, get his life on track, look after his mother, look out for the welfare of his grandchild, while dealing with his own declining health and pressing financial issues. Unfortunately, the Board lacks any legal authority to award VA benefits out of sympathy.

Instead, the Board must strictly adhere to the existing laws and regulations that require a legal determination as to whether the evidence of record to supports the legal basis for the sought benefits. To this end, among many other mandatory legal criteria, the Board must determine with the requisite degree of probability whether it is the Veteran's service that precipitated his psychiatric and spine disabilities. To this end, the requisite evidentiary standard is relative equipoise, referred to as "at least as likely as not" or "probability of 50 percent or greater," which essentially means a likelihood that is approximately balanced or near equal, if not greater. This is where the evidence of record ultimately fails.

To be vividly clear, the evidence of record neither disproves the Veteran's claim with an absolute degree of certainty nor renders his claim inconceivable. To the contrary, the evidence of record has suggested that his military service was both physical and mentally stressful. However, the mere exposures to physical and mental stress are enough to establish the subsequently developed physical and mental disabilities were caused by that stress. Such a determination requires
and spine disabilities. To this end, the requisite evidentiary standard is relative equipoise, referred to as "at least as likely as not" or "probability of 50 percent or greater," which essentially means a likelihood that is approximately balanced or near equal, if not greater. This is where the evidence of record ultimately fails.

To be vividly clear, the evidence of record neither disproves the Veteran's claim with an absolute degree of certainty nor renders his claim inconceivable. To the contrary, the evidence of record has suggested that his military service was both physical and mentally stressful. However, the mere exposures to physical and mental stress are enough to establish the subsequently developed physical and mental disabilities were caused by that stress. Such a determination requires medical expertise. The probative value of the negative evidence to that end weighed against the positive evidence before the Board at this time tips the scales against the Veteran's claim that his current disabilities were caused by or otherwise are causally related to his military service. Unless the positive and negative evidence strikes at least an approximately equal balance, the appeal must be denied.

In closing, as detailed in the enclosed forms, if the Veteran disagrees with the Board, he may appeal this decision to the United States Court of Appeals for Veterans Claims. In the alternative, he may consider filing a supplemental claim supported by new and relevant evidence. Such evidence may include a refined private psychological evaluation report considering all material evidence of record, reconciling any discrepancies, and clearly explaining the medical basis for its conclusion. He may also submit such opinions from his current VA medical providers.

The Veteran further may submit any scientific or medical literature discussing causal relationships between spine disorders and military service, or medical opinions of any provider of his choice, clearly explaining the pathophysiological mechanism by which his service likely may have caused his current lumbar spine disability. He also may obtain and submit lay witness statements from any friends, acquaintances, colleagues, neighbors, and family members who have known the Veteran during or shortly after his service and have personal knowledge of his back problems and substance abuse history.

If the Veteran had undergone any associated private medical treatment after his discharge from service and prior to enrolling in the VA health care in 2008, to include any associated treatments during his incarcerations, he may submit a statement to that end, identifying the names of facilities and/or doctors with places and approximate dates of treatments, and VA will assist him in obtaining those records. At present, the claims are denied.

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Alex Bardin, 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.

Analyze in VA Law Explorer