INTERVERTEBRAL DISC SYNDROME

B. D. WATSON · 2025 · Case ID: 25013103

MIXED

Summary

The veteran, who served from January 1967 to November 1974, appeals the denial of service connection for a neck disability, bilateral hip disabilities, and an acquired psychiatric disability, all claimed as secondary to a service-connected low back condition. The Board granted service connection for the low back condition, finding it manifested during service and was supported by a probative private medical opinion from a Physician Assistant that linked the chronic low back pain to the veteran's MOS duties. The Board also granted service connection for bilateral hip disabilities secondary to the low back condition, finding an approximate balance of evidence, including early treatment records and the veteran's consistent statements, warranted granting the benefit of the doubt. However, service connection for the neck disability and the acquired psychiatric disorder as secondary to the low back condition were denied. For the neck claim, the Board found insufficient medical evidence linking the cervical strain to the low back condition, despite the veteran's complaints and a VA diagnosis of cervical strain. For the psychiatric claim, while the veteran's credibility regarding his mental health symptoms was acknowledged, competent medical opinions from VA examiners indicated the conditions stemmed from multiple etiologies unrelated to the low back disability, and the weight of the evidence was against service connection.

Rationale

Veteran's statements regarding in-service onset and treatment are credible.; Private medical opinion provided probative support for nexus.; Benefit of the doubt resolved in veteran's favor due to missing STRs and approximate balance of evidence.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-10 353

Full Decision Text

Citation Nr: 25013103
Decision Date: 10/21/25 Archive Date: 10/21/25

DOCKET NO. 17-10 353
DATE: October 21, 2025

ORDER

Entitlement to service connection for a low back disability is granted.

Entitlement to service connection for a neck disability secondary to low back disability is denied.

Entitlement to service connection for right hip disability secondary to low back disability is granted.

Entitlement to service connection for a left hip disability secondary to low back disability is granted.

Entitlement to service connection for an acquired psychiatric disability secondary to low back disability is denied.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, his low back disability (variously diagnosed as lumbosacral strain, osteoarthritis, degenerative arthritis of the spine, and chronic low back pain) manifested during active service.

2. The Veteran's neck condition is not shown by the record to be secondary to his service-connected low back condition.

3. Resolving reasonable doubt in the Veteran's favor, his bilateral hip disability diagnosed as hip strain and degenerative arthritis resulted from service-connected low back disability.

4. The Veteran's acquired psychiatric disability (variously diagnosed as depressive disorder and anxiety) is not shown by the record to be secondary to his service-connected low back disability.

CONCLUSIONS OF LAW

1. The criteria for establishing entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

2. The criteria for entitlement to service connection for a neck disability as secondary to low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

3. The criteria for entitlement to service connection for a right hip disability as secondary to low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

4. The criteria for entitlement to service connection for a left hip disability as secondary to low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

5. The criteria for entitlement to service connection for an acquired psychiatric disorder as secondary to low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1967 to November 1974. The Veteran passed away in October 2023. The Appellant, as substitute claimant, is "the person who bore the expense of last sickness or burial." See 38 C.F.R. § 3.1000(a)(5); see also Higher Level Review, associated 8/27/2025.

In December 2019, the Veteran testified at a Board of Veterans' Appeals (Board) Hearing before a Veterans Law Judge (VLJ) other than the undersigned VLJ.

In a February 2020 decision, the Board reopened the low back claim and then

remanded all claims herein. In a May 2021 decision, the Board remanded all

claims herein. In an August 2021 decision, the Board denied all claims herein.

In a November 2022 Joint Motion for Partial Remand (JMPR), the U.S. Court of

Appeals for Veterans Claims (Court) vacated and remanded the August 2021 Board

decision regarding all claims herein, but only the neck, bilateral hips, and acquired psychiatric disability claims regarding whether they are secondary to the low back disability (the Court specifically noted that the August 2021 Board decision should not be disturbed to the extent that it denied entitlement to service connection for a neck disability, bilateral hips disability, and an acquired psychiatric disability on a direct basis).

In February
2021 decision, the Board remanded all

claims herein. In an August 2021 decision, the Board denied all claims herein.

In a November 2022 Joint Motion for Partial Remand (JMPR), the U.S. Court of

Appeals for Veterans Claims (Court) vacated and remanded the August 2021 Board

In February 2023, VA mailed the Veteran a letter informing him that the VLJ who conducted the December 2019 Board hearing was no longer employed by the Board and the Veteran could request a new Board hearing if he desired. Arneson v. Shinseki, 24 Vet. App. 379 (2011). In a July 2023 response, the Veteran indicated that he did not want another Board hearing and wanted the case to be considered on the evidence of record.

In August 2023, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development; specifically, to obtain VA examination and etiological medical opinion. In September 2023, the AOJ issued a supplemental statement of the case (SSOC) denying service connection for the claims herein.

The case now returns to the Board for appellate disposition. In obtaining the requested VA exam/medical opinion in August 2023 and Addendum opinion in September 2023, as discussed herein, the Board finds the AOJ substantially complied with its August 2023 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with the Board remand is required).

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, this list includes arthritis. See 38 C.F.R. § 3.309(a).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption
for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307.

Generally, a veteran is competent to report symptoms and experiences observable

by his senses; however, a veteran is not competent to prove a matter requiring

medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.

2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See also Lynch v. McDonough, 21 F.4th 776 (2021).

1. Entitlement to service connection for a low back disability

The Veteran generally contends that his low back condition was caused and/or aggravated beyond natural progression by his service. See e.g., October 2010 Correspondence; November 2010 SSA Letter; June 2011 VA back examination; June 2012 Statement; October 2012 Statement; March 2013 Correspondence; July 2013 Notice of Disagreement (NOD); July 2013 Correspondence; December 2019 Board Hearing transcript; November 2020 VA back examination; June 2021 VA back opinion; December 2022 Statement; July 2023 Brief.

The Veteran's service treatment records (STRs) reflect that the Veteran indicated on his May 1966 Report of Medical History that he had recurrent back pain and, in the past 5 years, received chiropractic treatment. Under physician's summary, the examining physician indicated that that the Veteran had "non radiating backache." On the associated Report of Medical Examination, the examining physician noted that "[n]o additional defects discovered upon physical inspection ... on Jan[uary] 1967 '(fit) for military service,'" further marking that the Veteran as qualified for enlistment.

The Veteran stated on several occasions that he injured his back during service, sought treatment on several occasions for his low back pain, and was given the medication, Darvon, for the pain and sent back to duty after which he self-treated low back issues with over the counter pain medications. He further stated that he receives Social Security benefits due to his in-service low back condition. See e.g., November 2006 VA Form 21-4138; October 2010 Correspondence; November 2010 SSA/SSI Letter; June 2011 VA examination; June 2012 VA Form21-4138; December 2019 Board Hearing Transcript.

The claims files indicate that the Veteran's complete STRs are not available for review. See e.g., July 2012 VA Form 21-3101; November 2012 VA VCAA/DTA letter; Jan 2012 VA Notification letter. In addition, medical records on which the Social Security Administration (SSA) based their decision for the Veteran's SSA benefits have since been destroyed. See e.g., May 2012 Medical Treatment Records (MTRs) - Furnished by SSA; February 2020 SSA-L1103. The Veteran also submitted a copy of a VA Form 21-526e (Page 1, undated) that suggests that he may have applied for VA compensation for "back and hip pain" on October 15, 1974, prior to service separation. See e.g., VA 21-4138, VA 21-526, and Military Personnel Record, associated 6/15/2012.

Post-service treatment records reflect that in 1993 the Veteran complained of having low back pain for over 20 years, and was variously diagnosed during the period on appeal as having lumbosacral strain,
(MTRs) - Furnished by SSA; February 2020 SSA-L1103. The Veteran also submitted a copy of a VA Form 21-526e (Page 1, undated) that suggests that he may have applied for VA compensation for "back and hip pain" on October 15, 1974, prior to service separation. See e.g., VA 21-4138, VA 21-526, and Military Personnel Record, associated 6/15/2012.

The Veteran was afforded VA examination/medical opinion in June 2011, January 2013, October 2020, and June 2021; however, in August 2023 decision, the Board found that none of the VA opinions were adequate because they failed to consider pertinent evidence, contained unsupported conclusions, and were contradictory. As such, the Board affords those VA opinions no probative weight. Likewise, on August 2023 Board remand to determine whether a preexisting back condition existed prior to the Veteran's service and if so next determine whether the evidence clearly and unmistakably showed that the preexisting back condition was not aggravated by service, in wording the exam request, VA specifically asked its examiner to opine on whether the record evidence support that "the claimed low back condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression" by the Veteran's military occupational specialty (MOS) duties during service. See Exam Request, associated 8/24/2023; C&P Exam, associated 9/5/2023. Yet, such wording presupposes the preexistence of the condition that the Board requested the medical examiner determine first. In September 2023, the Veteran's representative pointed out the faulty wording and requested VA clarify the question posed to the VA medical examiner. See Third Party Correspondence, associated 9/26/2023. Yet, in opinion subsequent to August 2023 VA examination, the same VA examiner provided addendum opinion in September 2023 to the same previously-posed question presupposing the back condition's preexistence. The Veteran's then-representative, who is now the Appellant's representative, likewise contended that the VA's request for a medical opinion contained prejudicial wording. See Medical Treatment Record-Non-Government Facility (MTR-NGF), associated 10/13/2023. The Board agrees and, accordingly, finds the August/September 2023 VA examination/addendum medical opinion inadequate for adjudication purposes and affords it no probative value.

In support of his claim, the Veteran had submitted a private medical opinion from L.B., Physician Assistant (PA), dated October 12, 2023, who noted performing a thorough review of the Veteran's medical history, to include his VA claims file, and opined that the Veteran's chronic low back pain diagnosed as lumbosacral strain with degenerative arthritis of the spine, which had not pre-existed his service, was in fact a direct result of his military service. In so finding, L.B. detailed the May 1966 examining provider found the Veteran to have a non-radiating backache with no disqualifying defects or diagnoses, clearing him for miliary service. L.B. detailed the Veteran's statements with regard to various injury sustained during service resulting in back pain, and cited to various medical literature to support the premise that the very activities he described performing as part of his in-service MOS (electronic technician), i.e., repeated heavy lifting, pushing/pulling, twisting etc., often result in mechanical damage in which the resultant acute pain can and often does develop into chronic pain, as was the Veteran's case. L.B. also detailed Veteran's statements that he sought treatment on numerous occasions, that his complete service treatment records were unavailable for review, and his reported history and available records were suggestive he had been experiencing chronic lower back pain since his time in service, resulting in the conditions which continued to persist from service onward. The Board finds this medical opinion probative because it is based on a review of the entire record, and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008).

As noted, direct service connection requires three elements be met: (1) current disability, (2) in-service occurrence; and (3) nexus. See Holton, supra. The AOJ
his complete service treatment records were unavailable for review, and his reported history and available records were suggestive he had been experiencing chronic lower back pain since his time in service, resulting in the conditions which continued to persist from service onward. The Board finds this medical opinion probative because it is based on a review of the entire record, and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008).

As noted, direct service connection requires three elements be met: (1) current disability, (2) in-service occurrence; and (3) nexus. See Holton, supra. The AOJ found the Veteran to have a current low back disability, diagnosed as lumbosacral strain and degenerative arthritis of the spine. See November 2020 SSOC. The Board is bound by such favorable findings of the AOJ. See 38 C.F.R. § 3.104(c). As such, element (1) under Holton has been met.

Next, with regard to in-service incurrence, a veteran will be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In this case, while the Veteran indicated a history of recurrent back pain and chiropractic care and was noted to have non-radiating backache on exam, the examining provider also specifically determined the Veteran had "[n]o additional defects discovered upon physical inspection" and was, therefore, "fit" for military service and "qualified" for enlistment. As such, the Board presumes the Veteran's was in sound condition at his entrance into service.

Next, in cases where the Veteran's STRs are unavailable through no fault of the Veteran, as is the case here, there is a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). Because of the missing records, the Board analyzes this claim with this heightened duty in mind. On that, as a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, bias, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Here, whether seeking medical treatment for his back or VA compensation benefits, the Veteran consistently stated that his low back pain onset in service due to the duties he performed as part of his MOS, he sought and received medical attention on numerous occasions, and, after such treatment proved ineffective, he continued to self-treat until he sought medical attention some ten years after service. First, the Board finds the Veteran competent to make statements relating to the onset of his low back symptoms during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 n.4 (Fed. Cir. 2007). Next, while there are few STRs available for review, the Board finds no reason to doubt the Veteran's credibility regarding onset of his low back symptoms during service or that he received medical treatment for such during service. As such, element (2) under Holton has been met.

With regard to element (3) under Holton, nexus, the only probative opinion addressing service connection for a low back disability is in support of the claim. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102,
Cir. 2007). Next, while there are few STRs available for review, the Board finds no reason to doubt the Veteran's credibility regarding onset of his low back symptoms during service or that he received medical treatment for such during service. As such, element (2) under Holton has been met.

2. Entitlement to service connection for a neck disability secondary to low back disability

The Veteran generally contends that his neck condition resulted from his low back condition. See e.g., July 2013 NOD/Correspondence; December 2019 Board Hearing Transcript.

Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.

Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 51214 (1998).

The AOJ found the Veteran to have a current neck disability, diagnosed as cervical strain. See November 2020 SSOC. The Board is bound by such favorable findings of the AOJ. See 38 C.F.R. § 3.104(c). As such, element (1) for secondary service connection under Allen has been met.

However, the record fails to sufficiently show that a nexus exists between the Veteran's cervical strain and his service-connected low back disability. Post-service treatment records reflect the Veteran presented for medical treatment in May 1984 with complaints of mid-thoracic spine pain that onset "about age 13" and gotten more frequent and severe "in past 2-3 years." He did not endorse any specific injuries, nor any complaints of pain to the neck area. A cervical spine x-ray taken at that time indicated no abnormalities. See MTR-Nongovernment facility (NGF), associated 4/21/1995. Chiropractic records noted treating the Veteran for only a mid-thoracic problem from May 1984 to June 1984; no neck diagnosis/treatment was indicated. See MTR-NGF, associated 12/16/2010. An April 1986 treatment record reflected that the Veteran complained of low back and neck pain. However, treating physician, Dr. S.A., indicated in a letter dated May 9, 1995, that, although he first saw the Veteran in March 1986 and for a total six office visits, the Veteran had only been treated for lumbosacral strain and sacroiliac strain. Dr. S.A. did not indicate any diagnosis and/or treatment for cervical/neck issue(s). See MTR-NGF & Third Party Correspondence, associated 6/29/1995. A September 1993 medical certificates noted the Veteran presented with complaints of back and neck pain for "20 years." While a lumbosacral spine x-ray indicated degenerative arthritis at L5-S1, a cervical spine x-ray taken at that time to rule out any cervical disc disease indicated there were no abnormalities. See VA 10-10 forms, associated 4/11/1995; CAPRI records, associated 1/10/2017. March 1995 cervical spine x-ray, including flexion and extension views, were obtained and showed no evidence for fracture or dislocation, good bone mineralization, and no other abnormalities. See CAPRI records, associated 1/10/2017. Physical examination of the Veteran in December 2010 revealed he had full range of motion in his neck and all extremities had full range of motion, and complained only of low back pain. His cranial nerves were noted grossly intact, sensory
time to rule out any cervical disc disease indicated there were no abnormalities. See VA 10-10 forms, associated 4/11/1995; CAPRI records, associated 1/10/2017. March 1995 cervical spine x-ray, including flexion and extension views, were obtained and showed no evidence for fracture or dislocation, good bone mineralization, and no other abnormalities. See CAPRI records, associated 1/10/2017. Physical examination of the Veteran in December 2010 revealed he had full range of motion in his neck and all extremities had full range of motion, and complained only of low back pain. His cranial nerves were noted grossly intact, sensory was intact, and he had full motor strength (5 out of 5) in all extremities with no atrophy. See CAPRI records, associated 6/8/2021.

On VA neck examination in October 2020, the examiner noted the Veteran had limited range of neck motion with pain, consistent with a diagnosis of cervical neck strain; however, his muscle strength, reflexes, and sensation were normal to his cervical neck. On VA back examination, the examiner noted that the Veteran indicated his back flare-ups were becoming more frequent and involved stiffness and achy low back pain. The Veteran did not endorse pain radiating pain to his neck and specifically denied any to his legs. Objective evidence of localized tenderness or pain on palpation was indicated to his thorax/low back area only.

In support of the Veteran's claim, he submitted a private medical opinion from PA L.B., as noted above. See MTR-NGF, associated 10/13/2023. While L. B. had competently and adequately addressed the Veteran's chronic low back disability and its relation to his active duty service activities, she did not address any issues related to a neck disability.

The Board has also considered the Veteran's, and now Appellant's contentions with regard to service connection on a secondary basis. As a lay person, the Veteran was competent to report on that which he had personal knowledge, which included symptoms such as neck pain, and the Board deems him credible in that regard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he was not nor is the Appellant competent to opine on the etiology of his cervical strain, as that requires medical expertise that is outside the realm of common knowledge of a layperson and neither has shown the requisite medical expertise. Kahana v. Shinseki, 24 Vet. App. at 428 (2011); Jandreau v. Nicholson, 492 F.3d at 1372 (Fed. Cir. 2007).

With respect to secondary service connection, while the indicated medical records document the Veteran's periodic complaints of neck pain from 1986 on, and a VA examiner diagnosed cervical strain in October 2020 based on a limited range of his neck motion, there is simply no medical evidence associating the Veteran's cervical strain to his low back disability. As the weight of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and service connection for a neck disability as secondary to a low back disability is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, supra.

3. Entitlement to service connection for right hip disability secondary to low back disability

4. Entitlement to service connection for a left hip disability secondary to low back disability

The Veteran generally contends that his bilateral hips condition resulted from his low back condition. See e.g., July 2013 NOD/Correspondence; December 2019 Board Hearing Transcript.

The AOJ found the Veteran to have a current bilateral hip disability, diagnosed as hip strain and degenerative arthritis. See November 2020 SSOC. The Board is bound by such favorable findings of the AOJ. See 38 C.F.R. § 3.104(c). As such, element (1) for secondary service connection under Allen has been met.

With regard to element (2) for secondary service connection under Allen, the Board finds there to be an approximate balance of positive and negative evidence. On that, as previously noted, the claims files indicate that the Veteran's complete STRs are not available for review. See e.g., July 2012 VA Form 21-3101; November 2012 VA VCAA/DTA letter; Jan 2012 VA Notification letter. However, the Veteran did submit a copy of a VA Form 21-526e (Page 1, undated) that indicates he may have applied for VA compensation for "back and hip pain" on October 15, 1974, prior to his service separation. See e.g., VA 21-4138, VA 21-526, and Military Personnel Record, associated 6/15/2012. While not dispositive, this does lend credence to the Veteran's assertions that his hip pain relates to his back pain, as early as 1974. In various statements, the Veteran asserted that he self-treated his pain with over the counter medications for years before seeking medical treatment.

Post-service treatment records reflect the Veteran presented for medical treatment in May 1984 with complaints of mid-thoracic spine pain that onset "about age 13" and gotten more frequent and severe "in past 2-3 years." He did not endorse any specific injuries but did endorse having sometimes radiation "down to beltline," that his back was giving him trouble at waking, and that he had some soreness in his left hip area. A hip diagnosis was not provided at that time and thoracic and cervical spine x-rays indicated no abnormalities. See MTR-NGF, associated 4/21/1995. Chiropractic records noted treating the Veteran for only a mid-thoracic problem from May to June 1984; no hip diagnosis/treatment was indicated. See MTR-NGF, associated 12/16/2010. An April 1986 treatment record reflected that the Veteran complained of low back pain and "pain in left hip." Treating physician Dr. S.A. indicated in a May 1995 letter that he first saw the Veteran in March 1986 with "complaints of lower back, left hip, and thigh pain," and treated him for a total 6 visits for lumbosacral strain and sacroiliac (SI) strain. See MTR-NGF & Third Party Correspondence, associated 6/29/1995. In January 1993 medical certificate, the Veteran presented to triage with complaints of back and neck pain for "20 years," indicating low back pain on the left greater than the right "which radiates to buttocks & hips." A lumbosacral spine x-ray was obtained for noted clinical history of chronic low back pain "with radiation to hip," which showed arthritic changes in both SI joints and evidence of degenerative changes in the lumbar spine at L5-S1. See VA 10-10 forms, associated 4/11/1995; CAPRI records, associated 1/10/2017. Physical exam of the Veteran in December 2010 revealed he had full range of his motion in all extremities and complained only of low back pain. Cranial nerves were noted grossly intact, sensations were intact, and he had full (5/5) motor strength in all his extremities. See CAPRI records, associated 6/8/2021.

On VA back examination in June 2011, the Veteran endorsed worsened low back pain but denied any associated paresthesias or leg/foot weakness. Normal gait and bilateral hip flexion/extension (5 out of 5) was indicated. Pelvis x-ray taken in May 2011 showed minimal degenerative changes in both hip joints and sclerosis of both SI joints. October 2020 VA hips examination noted diagnoses of bilateral hip degenerative arthritis (as confirmed by 2011 x-ray) and hip strain. The Veteran endorsed onset of bilateral hip pain "after having back pain for some time." Pain was noted on exam causing functional loss, to include walking with an uneven gait. On VA back examination, the examiner noted the Veteran endorsed having a flare-up that day with more intense sharper pain in the low back but no radiation down his legs. Normal bilateral hip flexion/extension was indicated. No signs/symptoms of radicular pain were indicated.

In support of the Veteran's claim, he submitted a private medical opinion from PA L.B. See M
SI joints. October 2020 VA hips examination noted diagnoses of bilateral hip degenerative arthritis (as confirmed by 2011 x-ray) and hip strain. The Veteran endorsed onset of bilateral hip pain "after having back pain for some time." Pain was noted on exam causing functional loss, to include walking with an uneven gait. On VA back examination, the examiner noted the Veteran endorsed having a flare-up that day with more intense sharper pain in the low back but no radiation down his legs. Normal bilateral hip flexion/extension was indicated. No signs/symptoms of radicular pain were indicated.

In support of the Veteran's claim, he submitted a private medical opinion from PA L.B. See MTR-NGF, associated 10/13/2023. As noted above, L. B. competently and adequately addressed the Veteran's chronic low back disability and its relation to his active duty service activities. While not specifically addressing the Veteran's hips disability, L.B. did also note that the Veteran applied for VA compensation for his low back and hips in 1974, prior to his separation from service. L.B. also cited to medical literature, one of which noted that repeated heavy lifting, as described by the Veteran with service duties, can "strain back muscles and spinal ligaments," leading to chronic pain, and another of which alluded to the progressive nature of lumbar degenerative diseases that result in slow "degenerative cascade" processes.

The Board considered the Veteran's (and now Appellant's) contentions. As a lay person, the Veteran was competent to report on that which he had personal knowledge, which included symptoms such as hip pain, and the Board deems him credible in that regard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he was not nor is the Appellant competent to opine on the etiology of his bilateral hip strain and degenerative arthritis, as that requires medical expertise that is outside the realm of common knowledge of a layperson and neither has shown the requisite medical expertise. Kahana v. Shinseki, 24 Vet. App. at 428 (2011); Jandreau v. Nicholson, 492 F.3d at 1372 (Fed. Cir. 2007).

With respect to secondary service connection, the medical evidence reflects not only that the Veteran had degenerative arthritis and hip strain bilaterally, but also that the pain associated with such was, at times, noted as having radiated from the Veteran's chronic low back condition. Thus, when viewing the evidence in light most favorable to the Veteran, and resolving all doubt in the Veteran's favor, the Board finds that service connection for a bilateral hip disability as secondary to a low back disability is warranted. The claim is therefore granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, supra.

5. Entitlement to service connection for an acquired psychiatric disability secondary to low back disability

The Veteran generally contends that his acquired psychiatric disorder resulted from his low back condition. See e.g., July 2013 NOD; December 2019 Board Hearing Transcript.

Post-service treatment records reflect that the Veteran was treated for chronic low back pain throughout the period on appeal. Records also reflect that the Veteran received periodic mental health treatment during the appeal period. For instance, at November 1999 psychiatry intake, a clinician noted the Veteran reportedly first sought mental health treatment in 1983 "all related to martial difficulties," and, in 1996, VA treated the Veteran with Zoloft "when he was feeling depressed." On evaluation, the clinician noted the Veteran reported a depressed mood for several months due to concerns about his mother's health and having to move to another state to care for her, being unemployed and having financial difficulties due to the move, and that he recently separated from his girlfriend. He was diagnosed with recurrent adjustment disorder with depressed mood and placed on antidepressant treatment. In March 2000, his clinician noted an impression of depressive disorder not otherwise specified (NOS).

In July 2013, the Veteran endorsed constant low back pain as the cause of his depression. See e.g., July 2013 NOD.

In April 2017, the Veteran requested mental health referral, indicating issues with his workplace behavior, having been married 6 times, divorced 5 times due to bad choices (infidelity, etc.), and still bereaving over the death of one wife from liver failure in 2003. VA Clinical Psychologist noted a diagnostic impression of major depressive disorder (MDD), recurrent, moderate to severe, and generalized anxiety disorder. In May 2017
treatment. In March 2000, his clinician noted an impression of depressive disorder not otherwise specified (NOS).

In July 2013, the Veteran endorsed constant low back pain as the cause of his depression. See e.g., July 2013 NOD.

In April 2017, the Veteran requested mental health referral, indicating issues with his workplace behavior, having been married 6 times, divorced 5 times due to bad choices (infidelity, etc.), and still bereaving over the death of one wife from liver failure in 2003. VA Clinical Psychologist noted a diagnostic impression of major depressive disorder (MDD), recurrent, moderate to severe, and generalized anxiety disorder. In May 2017, the Veteran endorsed continued frustration with his job and wanting to find a new partner to date. See CAPRI records, associated 2/27/2020. Active medications included alprazolam.

At the December 2019 Board hearing, the Veteran testified that he tried counseling between 2003/2004 and, when asked about Vietnam, he made up stories because of the guilt he felt for having not gone to Vietnam when a lot of his friends had, which caused him, as one counselor indicated, survivor's guilt. The Veteran testified that he worked through that and now has no problem admitting that during the Vietnam war he worked with nuclear weapons. He also testified to being placed on several medications for his depression and anxiety by his primary care provider.

At July 2020 VA mental disorders examination, the examiner diagnosed the Veteran with unspecified depressive disorder in partial remission based on his endorsed occasional anger reactivity to stressors (rude customers/coworkers) and history of interpersonal difficulties/betrayals/abandonment fears, multiple divorces, and work relationship problems, and now supportive friendship and stable job and reported gratitude, capacity to enjoy hobbies and best friend, and good energy. The examiner also diagnosed the Veteran with unspecified personality disorder based on VA psychiatric records (1994, 1999, 2017) documenting personality traits that included narcissistic and antisocial traits, chronic interpersonal difficulties, recurrent experiences of feeling betrayed/mistreated, impulsivity, failed marriages, exploitative relationships, fears of abandonment, and emotional liability. February 2000 VA note also included a diagnosis of unspecified personality disorder. The examiner indicated the symptoms of each disorder tend to overlap. The examiner remarked, after reviewing multiple psychology notes, that the Veteran's symptoms attributed to post-military stressors such as financial stress, job disappointments, feeling betrayed in relationships, dating disappointments, and erectile dysfunction. The Veteran also endorsed prescribed Prozac and Xanax by his primary care physician for treatment of his depression/anxiety. The examiner also noted that the Veteran denied ever been seen for mental health at the VA despite records showing psychiatric care in 1994, 1999, 2000, and 2017, or that he ever had issues with alcohol abuse despite 1994 psychiatric notes documenting a history of such problems. At no time did the Veteran endorse chronic pain as one of his stressors, nor did the examiner indicate chronic low back pain was a factor in the diagnosed mental health condition. Rather, the examiner opined that, taken together, the Veteran's mental health records did not support the idea that his depressive disorder was connected to his back injury. As the examiner's opinion is based on, not only a review of the entire record but also an in-person interview with the Veteran, and contains a clear conclusion supported by that record and observations of the Veteran at that time, the Board finds it probative with regard to service connection secondary to the Veteran's service-connected low back disability.

The Veteran was afforded another VA mental disorders examination in March 2023, which was conducted via approved video telehealth. Upon review of all available records and examination of the Veteran, the examiner diagnosed the Veteran with persistent depressive disorder. In so finding, the examiner noted that the Veteran began mental health treatment during the past few years and had been prescribed medications (i.e., trazadone, Zoloft, Xanax) to treat his symptoms of poor sleep, irritability, social withdrawal, and disrupted focus/memory. The examiner reasoned that, while the Veteran's mental health problems stem from multiple etiologies, most recently they were due to lung cancer diagnosed last year and recovery from related treatments, as well as uncertainty as to whether the cancer will resurface alongside related pain and physical limitations thereof. At no time did the examiner indicate chronic low back pain as a factor in the diagnosed mental health condition. As the examiner's opinion is based on, not only a review of the entire record but also a personal interview with the Veteran, and contains a clear conclusion supported by that record and observations of the Veteran at that time,
Zoloft, Xanax) to treat his symptoms of poor sleep, irritability, social withdrawal, and disrupted focus/memory. The examiner reasoned that, while the Veteran's mental health problems stem from multiple etiologies, most recently they were due to lung cancer diagnosed last year and recovery from related treatments, as well as uncertainty as to whether the cancer will resurface alongside related pain and physical limitations thereof. At no time did the examiner indicate chronic low back pain as a factor in the diagnosed mental health condition. As the examiner's opinion is based on, not only a review of the entire record but also a personal interview with the Veteran, and contains a clear conclusion supported by that record and observations of the Veteran at that time, the Board finds it probative with regard to service connection secondary to the Veteran's service-connected low back disability.

The Board also considered the Veteran's (and now Appellant's) contentions. As a lay person, the Veteran was competent to report on that which he had personal knowledge, which included symptoms such as depression/anxiety, and the Board deems him credible in that regard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he was not nor is the Appellant competent to opine on the etiology of his acquired psychiatric disorder, as that requires medical expertise that is outside the realm of common knowledge of a layperson and neither has shown the requisite medical expertise. Kahana v. Shinseki, 24 Vet. App. at 428 (2011); Jandreau v. Nicholson, 492 F.3d at 1372 (Fed. Cir. 2007).

With respect to secondary service connection, while the medical evidence reflects that the Veteran had a current psychiatric disability, variously diagnosed during the appeal period as recurrent adjustment disorder with depressed mood, depressive disorder NOS, generalized anxiety disorder, MDD, unspecified depressive disorder in partial remission, and persistent depressive disorder, evidence supportive of a nexus between then-current disability and service-connected low back disability cannot be established. Rather, competent, probative medical evidence to include the 2020 VA examination and 2023 VA examination reflect the Veteran's mental health issues stemmed from multitude etiologies, none of which included his low back disability. Thus, even when viewing the evidence in light most favorable to the Veteran, the Board finds that the evidence weighs against service connection. As the weight of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and service connection for an acquired psychiatric disability as secondary to a low back disability must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, supra.

B. D. WATSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Picard

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.

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