Citation Nr: 20005740 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 17-22 618A DATE: January 23, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression, is granted. Entitlement to service connection for headaches, to include as secondary to a service-connected acquired psychiatric disorder, is granted. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a back condition is denied. Entitlement to service connection for hepatitis B is denied. Entitlement to service connection for a left foot condition is denied. Entitlement to service connection for a right foot condition is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a skin condition is denied. Entitlement to service connection for a sleep disorder is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his psychiatric disorder claimed as depression, is at least as likely as not related to his military service. 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s headaches are proximately due to/aggravated beyond their natural progression by his service-connected acquired psychological disorder. 3. The Veteran does not have tinnitus that was incurred in and due to his time in service. 4. The Veteran’s back disability did not have its onset in service, it did not manifest to a compensable degree within one year of discharge, and it is not shown to be causally or etiologically related to any disease, injury, or incident in service. 5. The preponderance of the evidence is against finding that hepatitis B began during active service or is otherwise related to an in-service injury or disease. 6. The Veteran does not have a left foot condition that was incurred in and due to his time in service. 7. The Veteran does not have a right foot condition that was incurred in and due to his time in service. 8. The Veteran does not have hypertension that was incurred in and due to his time in service or manifested within a year of his separation from service. 9. The Veteran does not have a skin condition disorder that was incurred in and due to his time in service. 10. The Veteran does not have a sleep disorder that was incurred in or due to his time in service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include depression, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for headaches, secondary to an acquired psychological disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. § § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a back disability have not been met. 38 U.S.C. § § 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for service connection for hepatitis B have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for a left foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.310. 7. The criteria for entitlement to service connection for a right foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.310. 8. The criteria for service connection for hypertension have not been met. 38 U.S.C. § § 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 9. The criteria for entitlement to service connection for a skin condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 10. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1978 and from August 1978 to August 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision. On October 17, 2018, the Veteran’s representative submitted a brief in support of the Veteran’s claims for service connection an acquired psychiatric condition and headaches. However, the Veteran’s May 2018 substantive appeal requests review of all issues in the February 2017 rating decision. Accordingly, those issues remain before the Board and are discussed below. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must 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. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 17-1204 (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to service connection for an acquired psychiatric condition, to include depression A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran’s description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the claims for service connection for depression pursuant to Clemons and re-characterized them as shown on the cover page of this decision. The Veteran contends he has an acquired psychiatric disorder that was incurred in and due to his time in service. At the outset, the Board notes that the Veteran has been diagnosed with a mental disability, more specifically with major depression disorder. See October 2019 psychological report. The Veteran’s service treatment records (STRs) document counseling and group therapy during service, concurrent with personal family and marital turmoil. The Veteran reported inability to adapt to military life, difficulties with supervisors and general dissatisfaction with life. The Veteran submitted lay from his spouse and two friends who noted that the Veteran demeanor and thought process had changed after service and was less social and just not the same. See Lay Statements dated October 2018, November 2018 and June 2019. In October 2019, the Veteran submitted a private psychological report. The examiner reviewed the Veteran’s relevant history, diagnosed the Veteran with major depressive disorder and opined the Veteran’s mental health disability was at least as likely as not due to or aggravated by his service-connected physical impairments. The examiner continued on with a detailed explanation of the Veteran’s social and medical history and how the Veteran’s mental health affected his life. The examiner also reviewed the Veteran’s file, performed his own testing, and interviewed the Veteran. Based on the October 2019 examination and the overall record, the Board finds the evidence to be in equipoise, and granting the benefit of the doubt to the Veteran, will grant the claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). The nature and extent of this problem is not before the Board at this time. Entitlement to service connection for headaches, secondary to service-connected acquired psychiatric disorder The Veteran has alleged that he suffers from headaches which he attributes to his military service, to include as secondary to his service-connected acquired psychiatric disorder. In October 2019, the Veteran submitted a private medical opinion regarding his headaches. The Veteran was diagnosed with tension headaches that have been becoming worse in severity and more frequent over the years. The private examiner opined that “it is as likely as not that the [Veteran’s] headaches are caused and permanently aggravated by his sleep apnea and depression.” Therefore, giving the Veteran the benefit of the doubt, the Board finds that service connection for headaches, secondary to an acquired psychological disorder (including depression), is granted.. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). Entitlement to service connection for tinnitus The Veteran maintains that he suffers from tinnitus, which he attributes to his active duty service. A review of the Veteran’s in-service and available post-service treatment record does not contain complaints or diagnoses of tinnitus. While the Court has found a lay person competent to identify tinnitus which is a disorder that can be identified based on lay observation alone, the Board did not find any evidence in the Veteran’s service record that he was exposed to excessive noise while in service. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran’s DD 214 shows he last worked as a services specialist. Additionally, the Veteran’s available medical records do not show complaints of tinnitus or ringing in his ears. Based on the above, the claim for entitlement to service connection for tinnitus will be denied. Entitlement to service connection for a lower back condition and hepatitis B The Veteran contends that he suffers from a low back condition and hepatitis B, which are related to his active duty service. At the outset, the Board notes that the record contains evidence that the Veteran has a current low back condition and hepatitis B. See Washington VAMC records. Regarding the Veteran’s back condition, service treatment records only contain one complaint of back in September 1980 where the Veteran reported back pain for approximately six months that is getting worse with pushing and pulling. His separation examination in August 1982 states that he sought treatment for low back pain with a chiropractor but never sought medical treatment. The separation examination deemed his spine to be normal. Post-service treatment records are sparse and the only reference to back pain was made in September 2016 when the Veteran reported persistent back pain since leaving service. Of note, the Veteran reported to the provider that he made the appointment because he thought it would help with his claim for disability benefits for his back. The Veteran’s spouse submitted a lay statement dated June 17, 2019 in which she states that the Veteran has had back pain since she met him in approximately 1982. See June 2019 lay statement. Here, there is no competent and credible evidence of a nexus between the Veteran’s current back disorder and service. The only evidence of record in support of such a nexus are the Veteran and his spouse’s lay opinions that his current back problems are due to service. The Veteran and his spouse are certainly competent to report as to the observable symptoms the Veteran experiences and their history, but they cannot diagnose a spine disorder because of the medically complex nature of such a diagnosis. See Jandreau, 492 F.3d at 1377, n. 4. The Veteran and his spouse have not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran’s assertions as to a relationship between his neck complaints, initially noted many years after service, and service are of little probative value. Notably, there is no medical opinion of record that finds a nexus between the Veteran’s current back condition and service. Turning to hepatitis B, the Veteran’s post service treatment records show that he is diagnosed with hepatitis B. However, a review of the Veteran’s service treatment records does not reveal any diagnosis, treatment or complaints of any liver related issues during service. The Veteran submitted an internet article noting a problem with hepatitis B is in the Philippines. The Board finds these articles are of very little probative value because they are general in nature, do not relate to the specific facts of circumstances of the Veteran’s case, and are not accompanied by the opinion of any medical expert. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that a medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (finding that generic medical literature, which does not apply medical principles to the facts of an individual case, does not constitute competent evidence). The Board acknowledges that the Veteran was not provided a VA examination for his back condition and hepatitis B. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, we find that a VA examination is not warranted. An examination or medical opinion regarding the etiology of his claimed low back condition and hepatitis B is not indicated as there is no suggestion that the Veteran’s current conditions may be associated with service. Given the foregoing, the Board finds that the weight of the evidence is against a finding of service connection for a low back condition and hepatitis B. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. Therefore, entitlement to service connection for a low back condition and hepatitis B is denied. Entitlement to service connection for a right foot condition, a left foot condition, hypertension, a skin condition and a sleep disorder The Veteran has contended that he suffers from a right foot condition, a left foot condition, hypertension, a skin condition and a sleep disorder which are related to his active duty service. After a thorough review of the record, the Board finds that the competent and probative evidence of record fails to establish the existence of a right foot condition, a left foot condition, hypertension, a skin condition or a sleep disorder, at any time during the pendency of the appeal. In this case the weight of the evidence is against a finding that the Veteran was diagnosed with a specific diagnosis for any of the claimed disorders. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board has considered the Veteran’s assertions that he suffers from a right foot condition, a left foot condition, hypertension, a skin condition and a sleep disorder. However, while the Veteran is competent to relate the symptoms he experiences and how his symptoms affect his daily life, he is not competent to opine on complex medical issues, such as the severity, degree, or etiology of medical conditions. Thus, the Board must weigh the Veteran’s statements against the medical evidence of record. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer, 3 Vet. App. at 225. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Id. In the absence of any competent evidence of hemorrhoids, pneumonia, a headache disability, sleep apnea, allergies and sinus condition, a bilateral hip disability, a bilateral ankle disability, bilateral toe bone spurs or fibromyalgia, the Board must conclude the Veteran did not suffer from such disabilities. Without competent evidence of a diagnosis, the Board must deny the Veteran’s claims. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Notwithstanding this, there is no evidence of record to support a finding that the Veteran has a right foot condition, a left foot condition, hypertension, a skin condition and a sleep disorder, that were incurred in service, or is due to any aspect of the Veteran’s service. The Board notes that the Veteran was not afforded VA examination for the claimed disorders. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is no evidence of a diagnosis of hemorrhoids, pneumonia, a headache disability, sleep apnea, allergies and sinus condition, a bilateral hip disability, a bilateral ankle disability, bilateral toe bone spurs or fibromyalgia, the claims do not meet the requirements for obtaining a VA medical examination. (Continued on the next page)   Therefore, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for a right foot condition, a left foot condition, hypertension, a skin condition and a sleep disorder. The benefit-of-the-doubt rule does not apply, and the claims must be denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.