Citation Nr: 21062784 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-48 613 DATE: October 12, 2021 ORDER Service connection for a lumbar spine condition is denied. REMANDED Service connection for toenail fungus. FINDING OF FACT The Veteran's lumbar spine condition did not have its onset in service and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1989 to October 1993. The case is on appeal from a December 2015 rating decision. In May 2019, the Board adjudicated five claims and remanded the remaining claims for additional development. While the case was in remand status, in a July 2020 rating decision, the RO granted service connection for sleep apnea. As the benefit sought for that claim has been granted in full, it is no longer on appeal. Additional evidence was received subsequent to the most recent supplemental statement of the case issued in July 2020. As the evidence is not pertinent to the claim decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for a lumbar spine condition. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran is seeking service connection for a low back condition. The Veteran contends that he has a back disorder that had its onset during service as his back pain began while serving aboard the USS Tarawa. In this regard, he reported that during service, his duties as an aviation support technician required that he carry heavy nitrogen bottles and that he has experienced back pain since that time. See December 2019 VA examination report at 2. Initially, the evidence of record establishes that the Veteran has a current disability. A December 2019 VA examination report reflects that the Veteran was diagnosed with lumbar strain. The evidence of record also reflects the occurrence of an in-service injury, particularly when reasonable doubt is resolved in the Veteran's favor. In this regard, the Veteran asserts his duties as an aviation support technician, while stationed aboard the USS Tarawa, required that he carry heavy nitrogen bottles. In this case, the Board finds that the Veteran's contentions are consistent with the circumstances of his service. The Veteran's service personnel records reflect that he was stationed aboard the USS Tarawa and the Board finds that it is at least as likely as not that his duties would involve carrying heavy objects. Moreover, at the time of his September 1993 separation physical, the Veteran reported although he felt good overall, he was experiencing "a little back pain." Thus, the evidence of record reflects the occurrence of an in-service injury to the low back particularly when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the question becomes whether there is a nexus between the Veteran's current lumbar strain and his in-service report of back pain. Concerning this question, the evidence of record includes the opinions of an examiner who provided a November 2015 Gulf War General Medical Examination and an examiner who provided a December 2019 VA examination. The examiner who provided the November 2015 Gulf War General Medical Examination provided an opinion regarding whether the Veteran's joint pain, to include his back pain was related to toxic exposures during his service in the Persian Gulf. The examiner who provided the November 2015 VA examination noted that with regard to the Veteran's joint pain, to include his back pain, that his musculoskeletal problems are typical of those found in a 45-year-old, who is severely obese. He noted that the Veteran's body mass index was 43 and stated further that it is the rule, rather than the exception, that weight bearing joint pain in very obese people is due to the load on the joints. He stated further that the Veteran's back pain is related to his obesity, and that his examination of the Veteran did not reveal any findings that would suggest otherwise. Pursuant to the Board's May 2019 remand, an additional opinion was obtained in December 2019. The examiner determined that the Veteran's lumbar strain was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that the Veteran's first complaint of back pain was at the time of his separation from service in 1993, when the Veteran stated he was experiencing "a little back pain" and that it was not until 2009, 16 years after service, that the Veteran again reported low back pain. In making this determination, the examiner found significant the 16-year gap between the Veteran reporting "a little back pain" and a new report of back pain in 2009. The Board acknowledges the Veteran's contentions that his lumbar strain is related to carrying carry heavy nitrogen bottles and that his back pain had its onset during service. However, the Veteran's statements may not be used to establish a nexus opinion regarding this issue. The issues are medically complex, as they require knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, the Veteran's opinion lacks probative value, and an opinion by a qualified medical expert is required to decide the claims. Consequently, the Board gives more probative weight to the VA opinions described above. The Board finds the opinions, cumulatively, to be persuasive, as they rely on expert knowledge and the Veteran's medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinions support that the Veteran's lumbar strain is unrelated to carrying heavy nitrogen bottles on the USS Tarawa and did not have its onset during service. In this regard, the November 2015 explains that the more likely etiology for the Veteran's lumbar strain is due to his age and severe obesity. In addition, the December 2019 opinion supports that the Veteran's lumbar strain did not have its onset in service, as there is a gap of 16 years between the Veteran's report of a little back pain at service separation and his first report of back pain in 2009. In addition, consistent with this finding, the Board notes that a November 1999 VA treatment record reflects that the Veteran denied experiencing back pain and trouble lifting. Moreover, there is no similar medical opinion of record weighing in favor of service connection. In reaching the 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 in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is not warranted for a lumbar spine condition. REASONS FOR REMAND Service connection for toenail fungus. The Veteran is seeking service connection for toenail fungus. The Veteran contends that he has toenail fungus related unsanitary shower conditions onboard the USS Tarawa. The Veteran's post-service VA treatment records reveal that, in November 1999, an assessment of onychomycosis/nails of the feet was noted, and he reports that such condition is still present. Pursuant to the Board's May 2019 remand, the Veteran was afforded a VA examination in December 2019. At that time, the examiner diagnosed onychomycosis (a fungal infection of the nails). The Veteran explained that although he was unsure when he was diagnosed with toenail fungus, he believes it was in 1999, but his toenail fungus started when he was in the Navy. The examiner determined that it is less likely than not that the Veteran's onychomycosis was incurred in or caused by the claimed in service injury, event, or illness. She based this conclusion on the absence of notations related to the condition in the Veteran's STRs and his first documented diagnosis of the condition in 1999, six years after service. An addendum opinion was obtained in June 2020 as the May 2019 remand instructions requested that the sole basis of a negative opinion not be silence regarding the condition in the Veteran's STRs. The examiner who provided the June 2020 addendum opinion noted additionally that the Veteran's separation examination did not include any documentation concerning onychomycosis and that because the Veteran stated that this condition was diagnosed in 1999, it had its onset six years after the Veteran's separation from service. The Board finds that the opinion is not entirely sufficient to decide the claim. In providing a negative nexus opinion, the examiner relied solely on the Veteran's statement that the condition was diagnosed in 1999. Thus, the examiner did not consider the Veteran's lay statement that this condition initially began when he was in the Navy, and that the condition may have had its onset prior to its diagnosis. Accordingly, a new opinion is warranted on remand. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine the nature and etiology of the Veteran's toenail fungus. The entire claims file should be reviewed by the examiner. Any necessary testing should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's toenail fungus had its onset during service or is otherwise related to the Veteran's service. The examiner is asked to consider the statements from the Veteran indicating that symptoms started during service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. (Continued on the next page) The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. A complete rationale for all opinions expressed should be provided. If an opinion cannot be offered without resorting to speculation, the reason for this should be fully explained in the opinion. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, 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.