Citation Nr: 0812146 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 07-02 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for depression. 3. Entitlement to service connection for a left foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD B. Buck, Associate Counsel INTRODUCTION The veteran served on active duty from June 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to the benefits currently sought on appeal. The veteran appeared and testified at a personal hearing in July 2007 before the undersigned Acting Veterans Law Judge sitting in St. Petersburg, Florida. A transcript of the hearing has been added to the record. The record was held open for 60 days to allow the veteran to obtain and submit additional medical evidence, which evidence was subsequently receive with waiver of initial RO consideration. The issue of entitlement to service connection for a low back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The veteran experienced feelings of anxiety and irritability in June 1968, but did not experience chronic in- service psychiatric symptomatology or disease, including depression; psychiatric symptoms including depression were not continuous after separation from service; and currently diagnosed depression has not been related by competent medical evidence to any in-service injury or disease. 2. The veteran experienced an ingrown toenail in December 1969, but did not experience chronic in-service symptomatology of gout; symptoms of gout were not continuous after separation from service, and gout affecting the left foot first manifested many years after service; and gout has not been related by competent medical evidence to any in- service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for depression have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. The criteria for entitlement to service connection for gouty arthritis of the left foot have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in April 2006, the agency of original jurisdiction (AOJ) satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the AOJ notified the veteran of information and evidence necessary to substantiate the claims for service connection, including the process by which the initial effective date and disability rating are established. The notice advised the veteran of information and evidence that VA would seek to provide and information and evidence that he was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claims. In April 2006, the veteran notified VA that he had no other information or evidence to give VA. Furthermore, in his July 2007 hearing before the undersigned, the veteran indicated that all available records had been submitted to VA. Thus, the veteran has been able to participate effectively in the processing of his claims; the duty to notify has been fulfilled. VA has done everything reasonably possible to assist the veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has not been medically evaluated, nor has a medical opinion been sought, in conjunction with the claims decided herein; however, such is not necessary in this case. The Board is required to seek an exam and medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 C.F.R. § 3.159(c)(4) (2007). Regarding the claim for service connection for depression, the medical evidence establishes that the veteran currently receives treatment for major depressive disorder. See private progress note, December 2003; see also subsequent treatment records, dated through June 2005. The veteran's service medical records confirm that he sought treatment in June 1968 for anxiety and irritability, though the psychiatric consult service indicated there was no evidence of psychiatric disease. Regardless, this counts as an "event" in service. Therefore, the question remains whether the evidence indicates that there may be an association between the event in service and his current diagnosis. Such an indication will be found when there is "medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, the evidence of record does not indicate an association, and tends to weight against a finding of relationship to service. The veteran has not submitted any medical evidence on this point. The psychiatric treatment notes tend to associate the veteran's depression with his current (post-service) family and financial problems. Nor has the veteran established through his competent lay evidence that there has been a continuity of symptoms since service. In his personal hearing, he denied seeking psychiatric treatment right after service; instead, he thought he had been treated "sometime in the 1970's." He further relayed that his doctors had told him it was likely related to a lack of work. He did not testify to having psychiatric symptoms since service; nor do the treatment records support such a finding. There is no evidence to suggest a possible relationship between the veteran's anxiety complaint in service and his current diagnosis of major depression. Without such an indication, a medical exam and opinion are unnecessary. Referable to the claim for service connection for left foot disorder, the medical evidence establishes that the veteran's diagnosis is gouty arthritis. See x-ray, July 2004. The service medical records do not show gout, but do indicate that the veteran was treated for an in-grown toenail of the left great toe. This must be considered an "event" in service. Therefore, as above, the issue is whether the evidence indicates an association between the two. The veteran has not submitted any medical evidence linking his gout to his service. Nor has he maintained that there is a continuity of symptomatology from the incident in service to the present. He testified vaguely that he had "been having problems" and just living with it, and that it had become worse as he aged. This does not evidence a continuing pattern of symptoms of gouty arthritis that lead back to service. Because the record does not indicate that the current foot disorder may be related to service, a medical examination and opinion are not necessary. In all, the duty to assist has been fulfilled. Service Connection The veteran seeks service connection for depression and a left foot disorder, both of which he contends initially manifested in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail in a claim for direct service connection, there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in- service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Service Connection for Depression The veteran contends that, in service, he experienced feelings of anxiety and irritability, and that he frequently got into fights with other soldiers. He believes that his current depression stems from that period of service. A diagnosis of major depressive disorder is of record. See private progress note, December 2003; see also subsequent treatment records, dated through June 2005. Service medical records confirm that in June 1968 the veteran requested to see the psychiatric service because he could not talk to anyone else about what was bothering him. He was admitted and related that he had recent episodes of nervousness, "but not really that bad." He had "vague complaints" of irritability, temper problems, and occasional depression. He indicated that he had altercations with fellow servicemen about once a week for the prior month, each lasting about five minutes. On further review, these fights did not result in serious injury or loss of friendship. Objective observation found that the veteran was calm, oriented, mature, and articulate. His affect was appropriate and his judgment intact. There was no evidence of psychosis or depression. The psychiatrist indicated that there was no psychiatric disease present and no contraindications to full duty. The remainder of the veteran's service medical records, to include his March 1970 separation examination, are negative for complaints, treatment, or diagnosis of depression or any other psychiatric illness. While the veteran presented to sick call once with complaints of occasional depression, a psychiatric diagnosis was not found to be appropriate at that time. Based on this evidence, the Board finds that, although the veteran experienced feelings of anxiety and irritability in service in June 1968, he did not experience chronic in-service psychiatric symptomatology or disease, including depression. The Board also finds that psychiatric symptoms including depression were not continuous after separation from service. The service medical records show no diagnosis of psychiatric disorder in service, including at the service separation examination. Post-service records show that the veteran began receiving psychiatric treatment in December 2003. The progress notes refer to problems regarding financial, familial, and medical issues. Notably, they do not reference the veteran's military service. On the question of relationship of the currently diagnosed disorder to service, the relevant medical evidence after service shows that the receives treatment for depression, with symptoms revolving around non-service-related events. Although the veteran is competent to testify about the symptoms which he has experienced, he is not competent to render etiological opinions. For that, competent medical evidence is required. There is no such competent medical evidence of record that tends to relate the veteran's current depression or any psychiatric symptoms to service, including the in-service symptoms in June 1968. There is no competent evidence, lay or otherwise, to suggest that his currently diagnosed depression is at all associated with any event in service. As explained above, VA has a duty to assist the veteran in his claim for benefits; however, that duty in this case does not include a medical examination or opinion. See 38 C.F.R. § 3.159(c)(4); see also, McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The preponderance of the evidence is found to be against the veteran's claim; therefore, the benefit of the doubt provision does not apply. Service connection for depression is not warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Left Foot Disorder The veteran seeks service connection for a left foot disorder, which he contends began in service. The current medical evidence reveals that the sole diagnosis referable to the left foot is gouty arthritis. See VA x-ray, January 2004; VA progress note, May 2006. Indeed, the veteran testified before the undersigned that his current problem with his foot was gout. Service medical records do not document a diagnosis of gout. They note only treatment in December 1969 for an in-grown toenail of the left great toe. One-third of the nail was removed, and the veteran was given antibiotic ointment for treatment. He was relieved of duty for three days. The remainder of the service medical records, including his March 1970 separation examination, is negative for treatment or findings referable to the left foot. Post-service records show that in September 2003 the veteran sought treatment for left great toe pain. It was thought that it could be episodes of gout, arthritis, or an early bunion. An October 2003 note indicated that he had had the pain for "months." A January 2004 x-ray confirmed gouty arthritis of the left foot. The record does not contain evidence supporting, or even suggesting, a nexus between the veteran's in-service in-grown toenail and his later diagnosed gouty arthritis. As such, VA has no duty to seek one under the particular circumstances of this case. See 38 C.F.R. § 3.159(c)(4); see also, McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Without competent evidence of a nexus, direct service connection is not warranted. Alternatively, the nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, arthritis) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). Here, the veteran separated from service in April 1970. All identified and available records have been obtained. The first objective evidence of record of arthritis is by x-ray in January 2004, more than thirty years after the veteran's separation. Thus, on the basis of the record, the presumption is not applicable. Service connection for gouty arthritis of the left foot is denied. ORDER Service connection for depression is denied. Service connection for gouty arthritis of the left foot, claimed as a left foot disorder, is denied. REMAND The veteran seeks service connection for a low back disorder. A review of the record reveals that the veteran presented to sick call in March 1970 after having back pain when he "picked up [a] locker this a.m." The impression was an "acute lumbosacral spine strain." He was put on light duty for two days. Follow up treatment two days later indicated that his pain had decreased, but that he still had pain on bending or twisting. He was assigned light duty for five more days. There is no other treatment in service referable to the back, either before or after this incident. Post-service records show that in March 1992 the veteran sustained a significant back injury in the course of his employment, falling 26 feet down a shaft, being stopped by a grate at the bottom. The diagnosis at that time, and that for which he continues to receive treatment, was chronic severe lower thoracic, lumbosacral spine strain with palpable fibromyositis and bulging disk. In his June 2006 VA examination, the veteran reported a "jump" injury in service. An opinion was rendered indicating that it was "more likely than not that he has chronic lumbar strain due to injury while on service in addition to normal wearing and tearing of age." The opinion is based on such limited scope, however, as to be inadequate. Specifically, there is no mention of the only documented injury in service (the acute lumbosacral spine strain upon moving a locker) nor of the significant post-service back injury in 1992. While an examiner can render a current diagnosis based upon his examination of the veteran, the Court has held that without a thorough review of the record, an opinion regarding the etiology of the underlying condition can be no better than the facts alleged by the veteran. Swan v. Brown, 5 Vet. App. 229, 233 (1993). In effect, it is mere speculation. See Black v. Brown, 5 Vet. App. 177, 180 (1993). The veteran's treating neurologist submitted an opinion in August 2007, describing the veteran's in-service injury as one where he slammed his low back into a bunker wall, severely injuring his low back. He further states that the veteran's back never healed from that incident. He then referred to the on-the-job accident in 1992, noting it was "kind of like the straw that broke the camel's back." This opinion, while mentioning an in-service event and the 1992 work accident, does not provide a reasonable basis for the conclusion that there was a "severe" injury in service and that the drop from 26 feet down a shoot had limited effect on his back. Although both opinions of record are flawed for the reasons listed, they do indicate that the veteran has a current disability that may be associated with his service. Therefore, a contemporaneous examination must be conducted, and an opinion sought based upon a full review of the record. The record also shows that the veteran is in receipt of U.S. Social Security Administration (SSA) disability benefits, which he contends are based in part on his back disorder. As those records may be relevant to the etiology of the veteran's back disorder, they must be obtained now. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Obtain the veteran's U.S. Social Security Administration records, to include the decision by which disability benefits were granted, as well as any supporting medical records. 2. Schedule the veteran for a VA spine disorders examination to determine the nature and etiology of the veteran's current low back disorder. The claims file must be reviewed in conjunction with the examination. A full history referable to the back must be obtained, including the in-service injury and the 1992 work injury. All testing deemed necessary must be conducted and the results reported in detail. Based on the exam and a review of the record, the examiner is asked to render an opinion as to whether it is at least as likely as not (probability of 50 percent or more) that the veteran's in-service lumbar strain is medically related to his current back disorder. Attention is invited to the tabbed service medical records and the post-service treatment. A rationale must be included with any opinion expressed. 3. Thereafter, readjudicate the issue of service connection for a low back disorder. If the determination remains unfavorable to the veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs