Citation Nr: 20002874 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 14-08 357 DATE: January 14, 2020 THE ISSUES 1. Entitlement to service connection for ocular surface disease (claimed as dry eyes). 2. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder not otherwise specified (NOS), anxiety disorder, and alcoholism. 3. Entitlement to service connection for lumbosacral strain with 50 percent L1 compression. ORDER Entitlement to service connection for ocular surface disease (claimed as dry eyes) is denied. Entitlement to service connection for lumbosacral strain with 50 percent L1 compression is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder not otherwise specified (NOS), anxiety disorder, and alcoholism is remanded. FINDINGS OF FACT 1. The Veteran’s lumbosacral strain with 50 percent L1 compression is not causally or etiologically related to his active military service. 2. A current diagnosis of an ocular surface disease is not shown by the competent evidence of record, at any time during the pendency of his claim, nor does the evidence show the Veteran’s symptoms cause functional impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbosacral strain with 50 percent L1 compression have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2018). 2. The criteria for service connection for an ocular surface disease have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1999 to November 2003. This case comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board remanded this matter for additional development in July 2018. As will be discussed further below, the Board finds that there has been substantial compliance with its Remand directives and the matter is now properly before the Board. See Stegall v. West, 11 Vet. App. at 271. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The threshold requirement for service connection to be granted is competent evidence of the current existence of the claimed disability. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (stating that “[i]n the absence of proof of a present disability there can be no valid claim”). The United States Court of Appeals for the Federal Circuit has stated that “‘disability’ in [38 U.S.C] § 1110 refers to the functional impairment of earning capacity.” See Saunders v. Wilkie, 886 F.3d 1356 (2018). It was also stated in that case that “pain in the absence of a presently-diagnosed condition can cause functional impairment.” It was additionally stated in Saunders that “to establish a disability, the Veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a Veteran will need to show that her pain reaches the level of a functional impairment of earning capacity.” VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for lumbosacral strain with 50 percent L1 compression is denied. The Veteran maintains that he has a lumbosacral strain that is entitled to service connection. The Veteran received a VA general examination in October 2010 and was diagnosed with lumbosacral strain with 50 percent L1 compression. However, the October 2010 VA examiner did not provide an opinion as to the etiology of the Veteran’s back disability. The Veteran contends that his back condition is a result of pulling fuel hoses many times per day during service. See December 2017 Appellant Brief. The Veteran’s service personnel records confirm he was a fuel specialist. See DD 214. The Board notes that the Veteran is competent to describe his experiences in service, and finds his statements that he lifted heavy fuel hoses to be credible. Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the Veteran acknowledges that he suffered a post-service motor vehicle accident in 2008, he contends that this merely exacerbated his back disability that had been present since service. See December 2019 Appellate Brief. Service records are silent for complaints of back pain and the Board notes that the earliest complaints of back pain in the medical records begin in 2008, about five years after separation from service. See Service Treatment Records; see also June 2008 private treatment records. In order to determine the nature and etiology of the Veteran’s claimed back disability, and to obtain a medical opinion which considered the Veteran’s contentions that he injured his back, the Board remanded this matter in a January 2018 decision for a new VA examination. In accordance with the January 2018 Board remand directives, the Veteran was afforded a new VA examination in April 2018. Stegall, 11 Vet. App. at 271. The April 2018 VA examiner noted that Veteran had a diagnosis of lumbosacral strain and a “L1 compression fracture.” The examiner noted the Veteran’s lay statements regarding his back injuries while in service, but found that the Veteran’s back condition was “less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The VA examiner wrote that the Veteran’s current back condition was due to injuries he received in a 2008 motor vehicle accident the Veteran suffered several years after separation from service. The examiner found no chronicity of care until the 2008 motor vehicle accident. The examiner stated that he Veteran did no use assistive devices and cited a normal exit examination at separation from service. The Board finds the April 2018 VA examination report to be highly probative, as it is based on a thorough review of the Veteran's medical records and the Veteran's contentions, and cites to relevant medical principles. The opinion is also consistent with the other evidence of record and is supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Notably, there is no contrary medical opinion of record. While competent to report his past and current symptoms of back pain, the Veteran has presented no probative clinical evidence of a nexus between his bilateral lumbosacral strain and military service. As a layperson, the Veteran is not competent to associate his currently lumbosacral strain to lifting heavy objects during service. Such opinion requires specific medical training. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a nexus between his lumbosacral strain disability and his military service to be of no probative value. See Layno, 6 Vet. App. at 469-70 (1994); Jones, 7 Vet. App. at 137 (1994); see also 38 C.F.R. § 3.159 (a)(1) (2018). In light of the above, the Board concludes that the preponderance of the evidence is against the claims for service connection for lumbosacral strain with 50 percent L1 compression, and there is no doubt to be resolved. As such, service connection for lumbosacral strain with 50 percent L1 compression is denied. 2. Entitlement to service connection for ocular surface disease (claimed as dry eyes) is denied. The Veteran maintains that he has an ocular surface disease that is entitled to service connection. STRs show treatment for diesel fuel in his eye in April 2003, and getting a foreign object in his eye in October 2000 while changing a tire. A September 2010 VA ophthalmology consultation found that the Veteran had a diagnosis of “ocular surface disease (dry eyes), by history” but noted that there were no acute findings on the date of the VA consultation and a diagnosis could not be verified. The September 2010 examiner opined that the Veteran’s dry eyes were less likely as not caused by his exposure to diesel fuel, and noted that there were no records found of any eye complaints in service. In order to determine the nature and etiology of the Veteran’s claimed ocular surface disease, and to obtain a medical opinion which considered the Veteran’s documented eye treatment in service, the Board remanded this matter in a January 2018 decision. The Veteran was afforded a new VA examination in April 2018. Stegall The April 2018 VA examiner noted that Veteran had an unrelated diagnosis of “cortical age-related cataract, bilateral,” and noted that the Veteran reported a diagnosis of ocular surface disease. However, the VA examiner was not able diagnose ocular surface disease himself. The VA examiner wrote: “A comprehensive ocular health assessment was performed today including a dilated fundus examination. No acute manifestations consistent with ocular surface disease were found upon examination today: the [Veteran’s] corneas exhibited normal tear break up times in both eyes, no punctate epithelial erosions were noted in either eye and an adequate tear meniscus was present in both eyes. Because of this, a diagnosis of ocular surface disease was made today based on history alone. Furthermore, a review of the Veteran’s claim file shows no mention of chronic complaints related to dry eyes. Thus, it is my opinion that it is less likely than not (less than 50 percent probability) that the claimed condition… was incurred in or caused by the Veteran’s encounters with jet/diesel fuel while in service.” The examiner continued by noting that the Veteran’s claimed eye condition did not impact his ability to work. Overall, the Board finds that the evidence of record did not show that the Veteran's reported dry eye symptoms reached the level of functional impairment of earning capacity, as outlined in Saunders. No information was provided as to this issue during the extensive appeal period by the Veteran or his attorney representative. As noted, Saunders stated that "[t]o establish the presence of a disability, a Veteran will need to show that her pain reaches the level of a functional impairment of earning capacity." Upon review, the Board finds that such was not shown in this case. In sum, the evidence of record did not demonstrate a diagnosis of an ocular surface disease. The threshold requirement for service connection to be granted is competent evidence of the current existence of the claimed disability. The evidence of record does not show an ocular surface disease and without this the claim cannot succeed. As such, the Board finds that an ocular surface disease was not incurred in or aggravated by the Veteran’s active service. The Board accordingly concludes that the criteria for entitlement to service connection for an ocular surface disease have not been met and, to this extent, the Veteran’s claim therefore must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder not otherwise specified (NOS), anxiety disorder, and alcoholism is remanded. In order to determine the nature and etiology of the Veteran’s claimed psychiatric disability, the Board remanded this matter in a January 2018 decision to afford the Veteran a VA psychological examination. The Veteran was scheduled for a VA examination in July 2019. The record, however, does not indicate that Veteran was ever notified of the time or location of the scheduled examination. Therefore, the Board finds the Veteran's statements credible regarding not being notified of the examinations, and that the lack of notification constitutes good cause for missing a scheduled examination. Thus, upon remand the Veteran should be provided an examination to evaluate the nature and severity of his acquired psychiatric disability. The Board also notes that records submitted by the Veteran after the statement of the case indicated that there remain outstanding relevant medical records. In particular, the Veteran, through his attorney, identified missing substance abuse and/or mental health service treatment records. Since these records have been adequately identified and are relevant to the Veteran's claim, VA has duty to make proper efforts to obtain them. Thus, upon remand the RO should make proper attempts to obtain all outstanding relevant records identified by the Veteran. The Veteran is reminded that VA's duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the Veteran must cooperate in obtaining the evidence necessary to adjudicate the Veteran's claim, including attending VA exams. See, e.g., 38 C.F.R. §§ 3.159 (c) (requiring claimant to "cooperate fully with VA's efforts" to obtain both VA and non-VA medical records) and 3.655(b) (setting forth potential consequences when a veteran fails to appear for a scheduled examination). The Veteran should be aware, that a failure to appear at a scheduled examination without good cause could result in the denial of his claim or in a determination based on the record. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private medical records, to include the mental health and substance abuse service treatment records identified by the Veteran. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder, to include depressive disorder not otherwise specified (NOS), anxiety disorder, and alcoholism. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that any acquired psychiatric disorder had its onset in service or is otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 3. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veterans claim. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.