Citation Nr: 18159725 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-00 193A DATE: December 20, 2018 ORDER Entitlement to service connection for lumbosacral degenerative disc disease is granted. Entitlement to service connection for strain of the right great toe with arthritis is denied. FINDINGS OF FACT 1. The Veteran’s current lumbosacral degenerative disc disease is related to service. 2. The Veteran’s strain of the right great toe with arthritis was not incurred in service or related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for lumbosacral degenerative disc disease been met. 38 U.S.C. §§ 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for 5299-5283 strain of the right great toe with arthritis have not been met. 38 U.S. C. §§ 1101, 1110, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 303, 3.307, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from April 6, 1981 to December 12, 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran presented sworn testimony at a hearing before the undersigned on April 24, 2018. Service Connection Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service on a direct basis connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 1. Lumbosacral degenerative disc disease The Board finds that service connection for lumbosacral degenerative disc disease is warranted. The evidence of record shows that the Veteran has a current low back disability because he was diagnosed with lumbosacral degenerative disc disease by a 2012 VA examination. Thus, the key issue for decision in this appeal is whether the Veteran’s current low back disability had its onset in service or is related to an injury he sustained during service. The Veteran believes the cause of his degenerative disc disease is the physical training he undertook in service. He cites “almost daily physical training” which included “rapid and extensive exercises followed by an average of 10 to 13 mile run.” VA Form 21-4138, Statement in Support of Claim (2010). Specifically, he believes that carrying heavy items, such as loaded ruck sacks and rifles, caused his current disability. Id. During his period of service, the Veteran had only one complaint for back pain. In January 1983, the Veteran sought medical treatment for tenderness in his left, lower portion of his trapezius, and he was diagnosed with a bruised muscle. In two separate Reports of Medical History, completed in April 1985 and August 1986, the Veteran checked a box marked “no recurrent back pain.” Also in August 1986, a medical examination noted that the Veteran’s back had normal curvature and was negative for spasms or tenderness in the paravertebral area. Although there is no medical opinion of record that a nexus exists between the Veteran’s symptoms during service and his post-service diagnosis, such evidence is not always necessary. See King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); see also Davidson v. Shinseki, 581 F.3d at 1316 (2009). Nexus can be established by lay testimony describing symptoms that support a later diagnosis, which Veteran has provided in this instance. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). A Veteran is competent to testify to any pain he has suffered, and “his testimony can only be rejected only if found to be mistaken or otherwise deemed not credible.” CFR 3.159(a)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran reports that his back pain began in 1982. See 2012 VA Examination. His report was corroborated by his wife, who testified that the Veteran’s back pain began in service. She knew the Veteran while he was in service, and reported that “he has had back pain since [she] can remember.” Furthermore, she testified that the Veteran would not visit doctors for his back pain, which may explain the lack of treatment records for this issue. Even though the June 2012 and May 2015 VA medical opinions in the record are unfavorable to the Veteran, the Board concludes that there is sufficient evidence to resolve reasonable doubt in the Veteran’s favor. Considering the lay evidence and medical evidence, the Board finds that the evidence of record is in relative equipoise. Therefore, the Veteran prevails. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Affording the Veteran the benefit of the doubt, service connection for lumbosacral degenerative disc disease is granted. 2. Strain of the right great toe with arthritis The Veteran reported that, while serving in the Republic of Korea, another solider “dropped a 24 pound solid steel M2 Browning.50 Caliber Machinegun barrel which landed onto [his] right foot’s big toe.” VA 21-4138 Statement in Support of Case (March 17, 2014); see also Hearing Transcript p. 15-16. The Veteran says that his right great toe was crushed. The Veteran further asserts that he used crutches to maneuver after the injury, and sent the Board a photo of himself on crutches, which he labeled, “Me, as injuried 1982”. In July 2014, the Veteran was afforded a VA Examination to determine if there was any diagnosis of a right great toe disability. The examiner found functional loss associated with pain on the right foot, including symptoms of stiffness, pain, and disturbance of locomotion. The examiner found no functional loss in the left foot. The probative lay and medical evidence of record contradicts the Veteran’s testimony concerning his in-service right foot injury. Service treatment records show two mentions of the Veteran’s right foot. First, the Veteran was seen for right foot pain in December 1981 and treated with aspirin. Then in 1983, the Veteran was seen for sharp pain in his right foot. Neither of these records mention the Veteran’s right great toe or an injury from a dropped barrel. For this reason, the VA examiner found it less likely than not that the right toe injury was incurred in or caused by the claimed in-service injury, event, or illness. Generally, a VA examiner may not rely on the absence of evidence as negative evidence. See, e.g., Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Here, however, the VA examiner was making a medical determination that the lack of reported right toe symptoms noted in the service treatment records is inconsistent with the conclusion that the Veteran suffered a right great toe injury in service to such as the Veteran describes, or that his current functional impairment is related to an incident in service. The examiner also considered the Veteran’s reports concerning the onset of his right great toe symptoms. Thus, the Board finds that the examiner does not impermissibly rely on the absence of evidence in supporting the opinion. The Veteran’s Service Treatment Records do record an injury to his left great toe. In April 1982, the Veteran was treated for a possible fracture to his great left toe caused by dropping a pool table on his left foot. The Veteran was treated for the swelling and received an x-ray examination, which revealed no fracture. Upon leaving service, the Veteran checked a box noting “no foot pain” in an August 1986 examination. However, Board is unable to grant service connection for any left foot disability because, as discussed above, the Veteran does not have any functional loss to support a finding that he has suffered from a left foot disability during the appeal period. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). A current disability is a cornerstone of a service connection claim. Brammer v. Derwinski, 3 Vet. App. 223,225 (1992). To support his claim for right toe strain, the Veteran submitted lay evidence from two family members. First, the Veteran’s stepson testified to the following: [The Veteran] has told me the story of how another soldier dropped a machinegun barrel on his big toe in Korea. The gun barrel crushed his toe resulting in long-term pain. Over the years I have seen him rubbing his big toe because it has bothered him so much. He has also take off his right shoe because his toe was too sensitive. Second, the Veteran’s wife testified that as long as she can remember, the Veteran “has had pain and sensitivity in his big right toe. He told me the story of while he was stationed in Korea another soldier dropped a gun barrel over a stair railing onto his toe crushing it instantly.” Laypersons are competent to report anything that is personally observable. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the wife and stepson are competent to report the Veteran treating his toe and to repeat his claims of pain. However, these statements lack significant probative weight. Contrasted to their statements in support of the Veteran’s back claim, the wife and stepson’s statements here do not establish that the pain has been continuous since service. Further, the wife and son did not personally observe the Veteran’s claimed in-service injury, and their testimony cannot establish a nexus. Additionally, their testimony appears to be contradicted by the fact that the Veteran did not report pain in his right great toe either in service or afterwards. While lack of medical treatment itself is not evidence, it is probative in this instance because the Veteran complained of and was treated for an injury to his left great toe during service and his records show that he complained of and was treated for a myriad of ailments after service. For instance, a 2011 Industrial Rehabilitation Evaluation shows that the Veteran reported many medical complaints and self-diagnosed ailments, including “bilateral carpal tunnel syndrome bilateral RSD, degenerative disc disease (lumbar), chronic urticaria, asthma, tinnitus PTSD, IBS Acid reflux and a learning disability”. Notably, the report does not include any great toe injury or complaint of toe pain. Given that the Veteran’s in-service and post-service medical records contain comprehensive reports of his medical ailments, the Board finds the absence of complaints concerning the right great toe in these records is probative of whether the Veteran suffered a right toe injury in service and has had right toe pain since that time. See Fountain, supra. While the Veteran does present with a strain of his right great toe, there is insufficient evidence to either link the right great toe strain to an in-service occurrence or demonstrate continuous symptoms. For this reason, even after resolving all reasonable doubt in the Veteran’s favor, the evidence is not in equipoise as to all material elements of the claim. Therefore, service connection cannot be established. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304; 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Fagan, 573 F.3d at 1287. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Gillespie, Law Clerk