Citation Nr: A21017705 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 200525-89419 DATE: November 2, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for depression is denied. Entitlement to service connection for indigestion acid reflux, secondary to headaches is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to headaches is remanded. Entitlement to service connection for lumbosacral strain, secondary to a service-connected right ankle disability is remanded. Entitlement to service connection for cervical strain, secondary to a service-connected right ankle disability is remanded. Entitlement to service connection for a left knee disability, secondary to a service-connected right ankle disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran developed depression due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or due to an unforeseen circumstance. 2. The preponderance of the evidence of record is against finding that the Veteran's indigestion acid reflux is secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for depression have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. 2. The criteria for service connection for indigestion acid reflux have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1985. The rating decision on appeal was issued in April 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. In January 2021, the Veteran filed a motion to advance on docket (AOD). The motion was granted in January 2021. 1. Entitlement to compensation under 38 U.S.C. § 1151 for depression is denied. The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for depression. He has not put forth any arguments in support of his claim. A veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the veteran's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). In determining whether a veteran had an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after the care or treatment is rendered. The additional disability or death must not have been due to the veteran's failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To establish proximate causation, the evidence must show that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider (i.e., negligence); or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent; or (iii) the proximate cause of the additional low back disability was an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). The veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107. In its evaluation, the Board considers all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Despite a request for additional information, the Veteran has not provided any information as to why he believes he suffered the additional disability of depression as the result of VA treatment. The Veteran has not specified how this additional disability was caused (through VA hospital care, medical or surgical treatment, or examination by VA) or the fault on VA's part that led to the additional disability. Without this information, the Board is unable to determine whether compensation under 38 U.S.C. § 1151 is warranted. As the Veteran has not provided any evidence to substantiate his claim, the Board finds that the preponderance of the evidence is against finding that the Veteran is entitled to compensation under the provisions of 38 U.S.C. § 1151. Therefore, the benefit-of-the-doubt rule does not apply and claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for indigestion acid reflux, secondary to headaches is denied. The Veteran is seeking to establish service connection for indigestion acid reflux. He contends this disability is secondary to his headaches. Since the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). Following a review of the record, the Board finds that the evidence does not support finding that the Veteran's indigestion acid reflux is secondary to a service-connected disability. The Veteran's headaches are not service connected; therefore, the Veteran is unable to establish service connection for his indigestion acid reflux on a secondary basis to headaches. Further, the evidence does not support an association between the Veteran's claimed disability and any of his service-connected disabilities, specifically, left eye lateral corneal scar with Terrien's marginal degeneration, tinnitus, left ear hearing loss, right ankle osteochondritis dissecans, and right ankle scar. As the preponderance of the evidence is against finding that the Veteran's indigestion acid reflux is secondary to any service-connected disability, the claim must be denied. Therefore, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Under the AMA, the Board may only remand an issue to correct any pre-decisional duty to assist or notify errors it identifies. 38 C.F.R. §20.802. Here, the Board finds that such errors exist in this case. 1. Entitlement to service connection for headaches is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to headaches is remanded. The Veteran is seeking to establish service connection for headaches and an acquired psychiatric disorder. Specifically, the Veteran asserts he was hit in the face with a beer bottle during service. In a June 2018 statement, A. S., the Veteran's former military colleague, reported that he had served as military police with the Veteran. One evening in 1977 while in town with the Veteran, A. S. was attacked in an alley. The Veteran disrupted the brutal assault but was hit in the face with a beer bottle. In a May 2019 statement, Dr. R. M. indicated that the Veteran had been his patient for the last four years. The Veteran had reported an incident in November 1977 where he was treated for facial and ocular edema with bleeding from the left eye. The Veteran also reported he was diagnosed with depressive symptoms associated with suicidal ideation during that time. The Board notes that the Veteran has not been provided with VA examinations for headaches or an acquired psychiatric disorder to determine if they are etiologically linked to active duty. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the Veteran has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. As there is evidence of current disability and some evidence of a link to service, the Board finds that the Veteran should be afforded VA examinations to determine if his headaches and acquired psychiatric disorder are etiologically linked to active duty. 3. Entitlement to service connection for lumbosacral strain, secondary to a service-connected right ankle disability is remanded. 4. Entitlement to service connection for cervical strain, secondary to a service-connected right ankle disability is remanded. 5. Entitlement to service connection for a left knee disability, secondary to a service-connected right ankle disability is remanded. The Veteran is seeking to establish service connection for a left knee disability, lumbosacral strain, and cervical strain. The Veteran contends his claimed disabilities are secondary to his service-connected right ankle disability. The Veteran has not been afforded VA examinations to determine if his left knee disability, lumbosacral strain, and cervical strain are caused or aggravated by his right ankle disability. McLendon, 20 Vet. App. at 83. Therefore, remand for further development is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for headaches. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Are the Veteran's headaches at least as likely as not related to service? In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A rationale must be provided in support of all opinions. 2. Schedule the Veteran for a VA examination for an acquired psychiatric disorder. The examiner must review the claims file. The examiner is asked to provide a response to the following: a) Please list all diagnosed psychiatric disorders. b) Is the Veteran's acquired psychiatric disorder at least as likely as not related to service? Please provide an opinion for each diagnosis. If, and only if, the Veteran's headaches are found to be related to service, the examiner is asked to provide a response to the following: c) Is the Veteran's acquired psychiatric disorder at least as likely as not proximately due to his headaches? Please provide an opinion for each diagnosis. d) Is the Veteran's acquired psychiatric disorder at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his headaches? Please provide an opinion for each diagnosis. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A rationale must be provided in support of all opinions. 3. Schedule the Veteran for a VA examination for lumbosacral strain. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a) Is the Veteran's lumbosacral strain at least as likely as not related to service? b) Is the Veteran's lumbosacral strain at least as likely as not proximately due to his service-connected right ankle disability? c) Is the Veteran's lumbosacral strain at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected right ankle disability? A rationale must be provided in support of all opinions. 4. Schedule the Veteran for a VA examination for cervical strain. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a) Is the Veteran's cervical strain at least as likely as not related to service? b) Is the Veteran's cervical strain at least as likely as not proximately due to his service-connected right ankle disability? c) Is the Veteran's cervical strain at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected right ankle disability? A rationale must be provided in support of all opinions. 5. Schedule the Veteran for a VA examination for a left knee disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a) Is the Veteran's left knee disability at least as likely as not related to service? b) Is the Veteran's left knee disability at least as likely as not proximately due to his service-connected right ankle disability? c) Is the Veteran's left knee disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected right ankle disability? A rationale must be provided in support of all opinions. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.