Citation Nr: 21071746 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-31 182 DATE: December 1, 2021 ORDER Service connection for a low back disability is denied. Service connection for status post bowel resection is denied. Service connection for status post left below knee amputation is denied. Service connection for depression is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a low back disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a bowel resection is related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that a left below the knee amputation is related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that depression began during active service or is otherwise related to an in-service injury or disease. 5. The Veteran's service-connected disability does not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for status post bowel resection have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for status post left below knee amputation have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to May 1976 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) from May 2012 and July 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a September 2019 Board hearing. A copy of the transcript is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. To establish a service connection for a disability, a Veteran must show: (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. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996). Low back disability The Veteran contends that he has a current low back disability related to service. Specifically, the Veteran believes that he has low back pain from lifting heavy items, such as frozen meat boxes, while working in the stock room during service. At a September 2019 hearing, the Veteran stated that he did not go to sick hall for the back during service but that he nonetheless experienced back pain and soreness because of his job, which he self-treated with pain meds and heat packs. Service treatment records (STRs) are silent as to any complaints, treatment or diagnoses related to the back. In January 1983, medical records indicate a complaint of low back pain after playing ping pong. A scan of the lumbar spine found normal alignment without evidence of subluxation or acute bony injury. There was straightening of the lumbar curvature which could have been due to muscle spasm or positioning. Invertebral disc spaces were within normal limits and there was no abnormal paravertebral soft tissue swelling. A July 1987 medical record shows a complaint of low back pain with a history of a pinched nerve. The medical record does not indicate when the pinched nerve occurred. October 2011, complaint of lower back pain radiating to left knee. The Veteran reported he felt a "twinge" when he was getting into a low car. A scan of the lumbar spine found loss of disc height at L5 and S1. At a January 2020 VA examination, the Veteran reported back pain radiating down the back of the legs. The Veteran stated that in service, he drove and jumped on and off of tractors, forklifts, and tricks, developing low back pain. The examiner diagnosed degenerative arthritis of the spine and opined that the degenerative changes were less likely than not incurred in or caused by service. The examiner explained that there was no evidence of a low back condition during service. In an August 2020 addendum, a VA examiner again found a negative nexus. The examiner noted that while the Veteran reports having back pain and not seeking medical treatment during service, STRs show that he did seek treatment for seemingly lesser injuries, and that a low back condition severe enough to cause arthritis 30 years later would be significant enough to likely seek medical attention at that time. The examiner further noted that the first treatment record was in 1983, diagnosed as acute strain with an essentially normal x-ray. Lastly, the examiner also noted that the Veteran had a history of morbid obesity, and that medical literature shows obesity is associated with a high risk for back pain, arthritis, and degenerative changes, making this the most likely cause of the low back condition. At a May 2021 VA examination, the Veteran reported that low back pain began in 1972 during basic training, and that he reported the pain during a physical. The examiner diagnosed degenerative arthritis and degenerative disc disease, and opined that the back condition was less likely than not incurred in service or caused by an in-service injury or event. The examiner explained that there is no evidence that the Veteran reported back pain during service as he had reported, including in the separation examination. The examiner further noted that the first record indicating a back complaint after service was in 1983, after playing ping pong. While the Veteran did have a back condition, the examiner found no evidence of anything other than an acute back condition that did not significantly bother the Veteran until 30 years after service, which did not establish that it was related to anything during service. After review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current lower back condition that is related to service. While the Board acknowledges lay statements and testimony from the Veteran that he experienced back pain during service which has continued since service, the evidence of record does not support this contention. As noted above, the Veteran stated that he complained of back pain in service, which is not shown by the record. The record does show, however, that the Veteran did go to sick hall for various other and sometimes insignificant ailments, which leads to the Board questioning why there were no back complaints during service. The earliest records of back pain are in 1983, precipitated by a recreational event, and assessed as acute strain. The Veteran's current condition of arthritis and degenerative changes was not diagnosed until more than 30 years after service. Both VA examiners explicitly found no relationship between any current back conditions and any alleged in-service complaints. The August 2020 VA examiner specifically noted that the Veteran's history of morbid obesity likely contributed to the back conditions. While the Board is sympathetic to the Veteran's claim, the issue in this case is outside the realm of common knowledge of a lay person, as a nexus is not obvious merely through observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back condition. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Status post bowel resection The Veteran contends that a small intestine resection is related to service, specifically in-service treatment for pneumonia. The Veteran has stated that during service, he experienced chest and abdominal pain, which was diagnosed as pneumonia, and that he continued to experience similar symptoms periodically after service. The Veteran believes the abdominal pain experienced in service and after is the same pain he experienced later, resulting in intestinal surgery. A December 1972 STR indicates that the Veteran was diagnosed with pneumonia in the lower right lobe of the lung after complaining of cough, sore throat, chills, fever, and nausea. A July 1976 STR indicates complaints of severe pain in the right side of the chest, assessed as "probably muscular." The Board has already denied the Veteran's claim for service connection for a lung or respiratory condition related to service. There is no evidence that the Veteran had active pneumonia or any residuals after service. A January 2020 VA examiner found that there was no evidence of a chronic lung or respiratory condition, and that the Veteran was treated in service for an acute condition without residuals. Post service medical records indicate that in March 2004, the Veteran was admitted to the emergency room after experiencing nausea, vomiting and abdominal pain. The Veteran's blood sugar and blood pressure were elevated, and an EKG showed some abnormalities. The Veteran denied chest pain at that time. Providers found that the Veteran was experiencing diabetic ketoacidosis. Further workup revealed inferior wall myocardial infarction. A scan of the abdomen showed superior mesenteric artery occlusion and a small intestine resection was performed during an exploratory laparotomy. Both of these diagnoses were found to be associated with the Veteran's abdominal complaints. After the surgery, the Veteran was also found to have partial collapse of the right lung and left and right lung small pleural effusions. A March 2005 medical record noted that the Veteran was diagnosed with diabetes mellitus type II in 1999 and started on a diet plan. However, the Veteran was not compliant with the treatment, and in March 2004 he had an episode of abdominal pain which was ischemic colitis. Other VA medical records note the Veteran's family history of blood clotting due to Protein C deficiency. A June 2021 VA examiner opined that it was less likely than not that the small intestine resection was related to an in-service injury or illness. The examiner noted that the Veteran's STRs were silent for complaints related to abdominal pain, and that the 2004 incident was many years after service. Further, the examiner explained that the small bowel resection and mesenteric embolectomy performed in March 2004 were secondary to an acute mesenteric ischemia, which occurs when blood supply is decreased to the mesentery due to embolism or obstruction. Protein C deficiency, an inherited condition that increases the risk for developing blood clots, was more likely the cause of the embolism or obstruction. The examiner found no nexus between service and the intestine resection. After review of the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's small intestine resection was related to any in-service event, injury or illness. While STRs document a single episode of pneumonia and a complaint of chest pain, there are no in-service complaints or diagnoses related to abdominal pain. There are also no post-service records indicating continuing abdominal pain. Multiple records show that the March 2004 incident resulting in resection of the small intestine was a vascular issue originating from clotting issues. Further, there is no evidence that cold exposure during service caused any residual symptoms or conditions affecting the Veteran's arteries in such a way that led to the subsequent clotting and bowel resection. The June 2021 VA examiner explicitly found no link and explained that the Protein C deficiency was most likely the cause of clotting leading to the intestinal obstruction. The record also indicates the Veteran was non-compliant with diabetes treatment and experienced diabetic ketoacidosis in March 2004, which was linked to the symptoms of abdominal pain. Neither the Veteran nor his representative has provided any argument or evidence supporting a contrary conclusion. While the Board is sympathetic to the Veteran's claim and acknowledges the contention that the bowel resection is related to in-service symptoms, the medical evidence simply does not provide a link between the two. The issue in this case is outside the realm of common knowledge of a lay person, as a nexus is not obvious merely through observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the claim for service connection for status post bowel resection. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Status post left below knee amputation The Veteran contends that the left knee below the knee amputation is related to being exposed to cold weather and cramps in his legs during basic training. Alternatively, the Veteran contends that his amputation is related to his in-service treatment for pneumonia. Specifically, the Veteran has stated that he became very sick during training in cold weather, and that he believes that the cold weather damaged his arteries, ultimately causing the blood clots that led to amputation. STRs show that the Veteran reported he had experienced leg cramps in a November 1972 Report of Medical History upon entrance into service. STRs do not indicate any complaints, treatment or diagnoses related to leg cramps during service, however. As noted above, the Veteran was diagnosed with pneumonia in the lower right lobe of the lung during service. However, this was found to be an acute condition that resolved without residuals. VA and private medical records do not contain complaints, treatment or diagnoses related to the left leg or leg cramps within one year after discharge from service. The records indicate that in March 2004, the Veteran was admitted to the emergency room after experiencing nausea, vomiting and abdominal pain. A small intestine resection was performed. As a result of the surgery, the Veteran experienced ischemia of the left foot, leading to suboptimal left dorsalis pedis posterior tibial embolectomy ultimately resulting in below the knee amputation. Records at the time indicated that the Veteran had Protein C and S deficiency, and that the amputation resulted from blood clots after the intestines were removed. Other VA medical records note the Veteran's family history of blood clotting due to Protein C deficiency and indicate that the below the knee amputation was due to blood clots after the Veteran's intestinal surgery. A January 2020 VA examiner opined that it was less likely than not that the Veteran's below the knee amputation was related to any in-service injury or event. The examiner explained that the Veteran had a Protein C deficiency, which is an inherited condition, causing blood clots. This is the condition that caused the Veteran's blood clot which resulted in the amputation. The examiner noted the Veteran's reports of leg cramps upon entrance but found no relationship between the noted history and the amputation, especially since there was no record in service of any leg problems or change in health. After review of the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's below the knee amputation is related to any in-service event, injury, or illness. While the Veteran noted he had experienced leg cramps upon entry into service, STRs do not show that he experienced any leg cramps or leg related problems during service. Multiple records show that the March 2004 incident resulting in amputation of the left leg below the knee was a separate incident unrelated to anything that happened during service. Providers at that time related the amputation to a blood clot in the leg which was formed due to the Veteran's inherited condition of Protein C deficiency. Further, there is no evidence that cold exposure during service caused any residual symptoms or conditions affecting the Veteran's arteries in such a way that led to the subsequent clotting and amputation. The January 2020 VA examiner explicitly found no link and explained that the Protein C deficiency was most likely the cause of the clot leading to amputation. Neither the Veteran nor his representative has provided any argument or evidence supporting a contrary conclusion. While the Board is sympathetic to the Veteran's claim and acknowledges the contention that the amputation is related to in-service symptoms, the medical evidence simply does not provide a link between the two. The issue in this case is outside the realm of common knowledge of a lay person, as a nexus is not obvious merely through observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the claim for service connection for status post below the left knee amputation. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Depression At a September 2019 hearing before the Board, the Veteran's representative stated that the Veteran's depression was secondary to his lung condition, bowel resection and below the left knee amputation. The Veteran has not provided an alternative theory of service connection. STRs are silent as to complaints, treatment or diagnoses related to any psychiatric disability. Post-service medical records first indicate a diagnosis for depression in April 2010, where the diagnosis is listed in the past medical history. Prior to this, records show that depression screens were negative and that the Veteran denied feeling depressed or anxious. In a January 2012 VA medical record, the Veteran reported he was doing better regarding his depression. A January 2016 VA medical record shows a positive screen for depression based on a questionnaire. In July 2018, the Veteran reported slight depression sometimes. In October 2019, the Veteran reported depression and that he was sleeping all day and watching TV all night. After review of the record, the Board finds that the preponderance of the evidence is against a finding that service connection for depression is warranted. The Veteran has claimed that he has depression secondary to a lung/respiratory condition, below the knee amputation and bowel resection. As noted above, the Board has already denied the Veteran's claim for service connection for a lung or respiratory condition. The Board is herein denying the claims for service connection for amputation and bowel resection. Therefore, there is no basis on which the Veteran can claim secondary service connection. Regarding direct service connection, there is no evidence in the STRs indicating any psychiatric symptoms or complaints. Other medical evidence of record does not show a depression diagnosis until 2010, over 30 years after separation from service. Those records do not provide any information on the cause of the Veteran's depression. Some medical records indicate the Veteran was on depression medication to help to stop smoking. In short, there is no evidence of record linking currently diagnosed depression to service. Accordingly, the preponderance of the evidence is against the claim for service connection for depression. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. The Veteran is service connected for a right ankle disability, rated 10 percent effective September 23, 2019. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider the claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that the Veteran is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). For the reasons that follow, the Board finds that there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of service-connected disabilities, and therefore referral of the claim is not warranted. In a July 2013 application for TDIU, the Veteran stated that he was unable to secure employment due to lower back pain and below the knee amputation. He reported that he was last able to work full time as a youth counselor due to his disabilities in March 2004. At a February 2020 VA examination, the Veteran did not report any flareups or functional loss due to the disability. Plantar flexion on examination was slightly limited by pain. The examiner found that the Veteran's right ankle disability had no functional impact on his ability to work. At a September 2019 hearing, the Veteran reported that he stopped working in March 2004, and began receiving Social Security Administration (SSA) benefits, due to disabilities incurred after a small bowel resection and below the knee amputation. SSA records show that the Veteran reported he was unemployable due to coronary artery disease, diabetes mellitus, below the knee amputation, hypertension, and bowel resection. Given the forgoing, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of a service-connected right ankle disability. The Veteran has himself reported the disabilities that made him unemployable since March 2004, which do not include any service-connected disabilities. The Veteran has not asserted that his right ankle disability makes him unemployable, nor does the evidence indicate as much. Accordingly, referral of the claim for a TDIU is not warranted. A TDIU is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Ahmad 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.