Citation Nr: 18155983 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-06 904A DATE: December 6, 2018 ORDER Entitlement to service connection for a low back condition is denied. Entitlement to service connection for a right foot condition is denied. Entitlement to service connection for a chronic headache condition, to include as due to exposure to hydraulic fluid, is denied. FINDINGS OF FACT 1. A low back disability is not shown to be causally or etiologically related to any disease or injury during service, and arthritis did not manifest within one year of the Veteran’s discharge from service. 2. The preponderance of the evidence shows that the Veteran’s right foot condition was not present in service; osteoarthritis was not shown until many years thereafter and is not related to service or to an incident of service origin. 3. The most probative evidence fails to link the Veteran’s claimed headaches to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for right foot disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1101, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to July 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at videoconference hearings in April 2016 and August 2018. Transcripts of the hearings have been associated with the file. In a September 2016 decision, the Board denied service connection for a low back condition, right foot condition, and migraines. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In February 2018, the Court issued a memorandum decision and remanded the issues back to the Board. The Board notes that the remand from the Court was due to a lack of explicit suggestion as to the evidence the Veteran could submit to help substantiate his claim. At the Veteran's August 2018 hearing, the VLJ specifically asked the Veteran if a doctor or anyone else, had or “would link your current disability to service?” In response the Veteran identified his personal physician. Further, the Veteran submitted an additional nexus opinion after the hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Service Connection Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Low Back Condition The Veteran contends that his low back disability is due to an injury sustained in service. The Veteran has asserted that his current condition is due to lifting heavy objects, falling from a ladder, or being hit by a large can of hydraulic fluid. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, while the Veteran has a current diagnosis of facet arthritis of the lumbar spine and compression fracture with degenerative disc disease of the thoracic spine, and evidence shows that he lifted heavy objects and fell down a ladder, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of arthritis began during service or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records show the Veteran was not diagnosed with arthritis until 2012, nearly three decades after his separation from service. While the Veteran is competent to report having experienced symptoms of back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis or degenerative disc disease. The issue is medically complex, as it requires the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record contains conflicting medical opinions regarding whether the Veteran’s arthritis and degenerative disc disease are at least as likely as not related to an in-service injury or disease, including lifting heavy objects and a fall from a ladder. The March 2012 VA examiner opined that it was less likely than not that the Veteran's back condition was a result of injuries sustained in service. The rationale was that following the claimed incidents, the Veteran was observed for several months until his back strain resolved. There were no further notes of back pain and at his separation examination there was no indication of back pain. (The spine was normal on clinical evaluation.) Further there were no post service complaints of back pain until 2011. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner M.F. opined that the Veteran's back condition was at least as likely as not related to service. The rationale was that the Veteran suffered a back injury in service and has a current back problem. This opinion is, however, less probative than the VA examiner’s opinion. There is no indication that M.F. physically examined the Veteran. M.F.’s opinion did not account for the lack of back complaints upon separation. Nor did M.F.’s opinion account for the nearly three decades without complaints of back pain. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Similarly, private practitioner J.S. stated that he was treating injuries the Veteran suffered while in service. This is counter to J.S.’s own notes on the Veteran's medical history, which state in May 2011, that the Veteran has complained of back pain for one week. This is in contrast to the Veteran complaining of trouble breathing for 15-20 years. Further, J.S. provided no reasoning for his conclusion and did not account for the long period of time between service and the Veteran's complaints of back pain. Consequently, the Board gives more probative weight to the March 2012 VA examiner’s opinion. While the Veteran believes his arthritis is related to an in-service injury or disease, including a fall from a ladder and lifting heavy objects, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the Veteran's separation examination that documents no back problem, than it does his present contention that he has had a back disability since service. 2. Right Foot Condition The Veteran contends that he has a right foot disability due to an injury sustained while on active duty. The Veteran has asserted on numerous occasions that in February 1980, he fell off a ladder and injured his foot. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, while the Veteran has a current diagnosis of osteoarthritis, first metatarsophalangeal joint, and evidence shows that a fall from a ladder occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of osteoarthritis began during service or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records show the Veteran was not diagnosed with osteoarthritis until 2012, nearly three decades after his separation from service. While the Veteran is competent to report having experienced symptoms of foot pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of osteoarthritis. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record contains conflicting medical opinions regarding whether the Veteran’s arthritis is at least as likely as not related to an in-service injury or disease. The March 2012 VA examiner opined that it was less likely than not that the Veteran’s foot condition was a result of injuries sustained in service. The rationale was that although the Veteran fell while in service, he did not sustain a chronic foot injury, at his separation examination he did not complain of a foot injury, (the feet were normal on clinical evaluation) and at his VA examination he denied any history of a foot injury. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner M.F. opined that the Veteran’s foot condition was at least as likely as not related to service. The rationale was that the Veteran suffered a foot injury in service and has a current foot problem. This opinion is, however, less probative than the VA examiner’s opinion. There is no indication that M.F. physically examined the Veteran, and M.F.’s opinion did not account for normal findings related to the feet at service separation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Similarly, private practitioner J.S. stated that he was treating injuries the Veteran suffered while in service. However, J.S. never documented treating the Veteran for a foot problem. Further, J.S. provided no reasoning for his conclusion and did not account for the lack of a chronic problem in service and the long period of time between service and the Veteran’s post service complaints of foot pain. Consequently, the Board gives more probative weight to the March 2012 VA examiner’s opinion. While the Veteran believes his arthritis is related to an in-service injury or disease, including a fall from a ladder, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight in this regard to the Veteran’s service treatment records which fail to document a chronic foot injury due to a fall from a ladder, and the Veteran’s contentions. 3. Headaches The Veteran contends that he has migraine headaches that began in or are due to his service. The Veteran asserts that his exposure to various hydraulic fluids caused his migraines. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, while the Veteran has a current diagnosis of migraine headaches, and evidence shows that he was exposed to hydraulic fluids, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of migraines began during service or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records show the Veteran was not diagnosed with migraines until 2012, nearly three decades after his separation from service. While the Veteran is competent to report having experienced symptoms of headaches since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of migraines. The issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record contains conflicting medical opinions regarding whether the Veteran’s migraines are at least as likely as not related to an in-service injury or disease, including exposure to hydraulic fluid or tub oil in service. The March 2012 VA examiner opined that it was less likely than not that the Veteran’s migraines were a result of exposure to hazardous materials in service. The rationale was that although the Veteran was exposed, after he was removed from the exposure area, his headaches went away. The examiner noted that by the time of his separation the Veteran did not have any persistent or chronic headache symptoms. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran's representative claims that a March 1983 complaint of headache is too close in time to his July 1983 separation to declare his headaches had resolved. However, this headache was in conjunction with a sore throat and not due to exposure to hydraulic fluid. Further, the representative is not shown to be competent to express medical opinions. Private practitioner M.F. opined that the Veteran’s migraines are at least as likely not related to service. The rationale was that the Veteran was exposed to hydraulic fluids in service and has a current diagnosis of migraines. This opinion is, however, less probative than the VA examiner’s opinion. There is no indication that M.F. physically examined the Veteran. M.F.’s opinion did not account for the Veteran’s separation examination indicating there were no relevant abnormalities noted on clinical evaluation and the lengthy period of time between separation and a diagnosis of migraine headaches. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Similarly, private practitioner J.S. stated that he was treating injuries the Veteran suffered while in service. However, J.S. provided no reasoning for his conclusion and did not account for the Veteran not having headache symptoms documented upon separation. Consequently, the Board gives more probative weight to the March 2012 VA examiner’s opinion. While the Veteran believes his migraines are related to an in-service injury or disease, including exposure to hydraulic fluid, he is not competent to provide a nexus opinion in this case. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel