Citation Nr: 21075873 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-67 497 DATE: December 21, 2021 ORDER Service connection for degenerative disc disease (DDD)/degenerative joint disease (DJD), lumbar spine is granted. Service connection for an acquired psychiatric disorder, to include depression and anxiety, is granted. REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for heel spurs, right, is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's lumbar DDD/DJD is related to service. 2. The evidence is at least evenly balanced as to whether the Veteran's acquired psychiatric disorder had its onset during service with continuity of symptoms to the present. CONCLUSIONS OF LAW The criteria for service connection for lumbar DDD/DJD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 1. The criteria for service connection for an acquired psychiatric disorder, to include depression and anxiety, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1982 to April 1986. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for depressive disorder, anxiety disorder, a central brain disorder with chronic headaches, and confirmed and continued a previous denial of service connection for DDD/DJD, lumbar spine. By way of history, a March 2015 rating decision originally denied the claim of service connection for DDD/DJD, lumbar spine. The Veteran was notified of the decision in March 2015. In August 2015, within one year of notification of the March 2015 rating decision, VA received a new claim of service connection for DDD/DJD, lumbar spine, and in October 2015, the Veteran submitted a medical opinion from a treating VA neurosurgeon. As this new and material evidence was received within the one year period following notice of the March 2015 rating decision, the new evidence was considered as being submitted in conjunction with the earlier claim, and therefore remained pending until the claim was readjudicated in the November 2015 rating decision. In April 2016, VA received the Veteran's Notice of Disagreement (NOD). In November 2017, the RO issued a Statement of the Case (SOC). In the SOC, the RO recharacterized the psychiatric issue as "[e]ntitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety." In November 2017, VA received the Veteran's VA Form 9 appeal to the Board. Following completion of an August 2019 VA psychiatric examination and addition of new VA treatment records to the claims file, in August 2019, the RO issued a Supplemental Statement of the Case (SSOC). In August 2021, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as arthritis, is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). 1. Entitlement to service connection for DDD/DJD, lumbar spine. The Veteran contends that he has experienced low back symptoms since service. At the outset, the Veteran has a current diagnosis of lumbar DDD. See VA CT scan dated May 5, 2015. During the August 2021 Board hearing, the Veteran stated that he injured his back during service. Specifically, he recalls carrying bundles of cables, which were approximately "100 feet long," used to operate nuclear missiles. The Veteran was required to carry these cables "day in and day out constantly." August 2021 Board hearing transcript at 12. Following service, the Veteran reported having to take weeks off from work "three times over some years" because his back would "go out," even though he was no longer performing physical work. However, the Veteran also testified to experiencing a post-service back injury in June 1995 during employment as a delivery driver. In this regard, he recalls falling to the ground from his truck "when I went to step out." He testified that this was his "third or fourth episode" of elevated back pain following service. An MRI taken after the injury revealed multilevel disc damage in his lumbar spine. Id. at 12-13. In separate September 2018 statements, the Veteran's sister and wife stated that the Veteran has been suffering from chronic back pain since separation in 1986. Service treatment records (STRs) support the Veteran's contention that he suffered from low back problems during service. First, a January 1984 STR indicates that the Veteran complained of lower back pain and muscle spasm. See STRs dated January 27, 1984. Next, an October 1985 STR indicates that the Veteran "moves and walks bent over" due to "back spasms present of lower back." At that time, the Veteran also reported that "he has lower back pain which is [chronic] but has become worse." STRs dated October 10, 1985. Following service, a July 1991 VA medical certificate provides the earliest indication of low back pain following service. The certificate indicates that the Veteran complained of "back ache" of 3 weeks in duration; pain was "constant." VA medical certificate dated July 8, 1991. A lumbar spine X-ray series taken in July 1991 revealed no abnormalities. See VA X-ray report dated July 10, 1991. However, in July 1995, an MRI revealed "multilevel [DDD] with posterior protrusion L3-4, L4-5 & L5-S1." Chart note dated July 26, 1995. Subsequent medical records indicate that the Veteran suffered another low back injury during a motor vehicle accident which "aggravated the discomfort of his back." June 1998 Dr. Applebaum letter. Furthermore, more recent VA X-rays have demonstrated the continued presence of lumbar DDD. See VA CT scan dated May 5, 2015. First, there is no reason to doubt the Veteran's statements regarding occurrence of low back symptoms during and after service. See Caluza v. Brown, 7 Vet. App. 498 (1995). In this regard, the Veteran's statements are consistent with STRs, post-service treatment records, and statements from family members. Furthermore, he is competent to report observable symptoms such as pain. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not yet received a VA examination of his low back. Nonetheless, of record is an October 2015 statement from a treating VA neurosurgeon, Dr. Maulucci. In the statement, Dr. Maulucci noted that the Veteran "has been suffering with his lumbar condition since his time in the service." Furthermore, Dr. Maulucci opined that the Veteran's "physically taxing work while on active duty certainly contributed to his lumbar condition which has gotten worse over the years through progressive degeneration." The October 2015 opinion by Dr. Maulucci clearly articulates a nexus between the Veteran's in-service symptoms and current degenerative lumbar disability. The opinion is based on knowledge of the Veteran's medical history and contains an adequate supporting rationale. Accordingly, the October 2015 opinion by Dr. Maulucci is afforded significant probative value. Given the above, the evidence is at least evenly balanced as to whether the Veteran's lumbar DDD/DJD is related to service. When the evidence is in equipoise, the Veteran prevails. Therefore, resolving reasonable doubt in the Veteran's favor, service connection for lumbar DDD/DJD is warranted. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 53 (1990). 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. The Veteran contends that he has been suffering from psychiatric symptoms since service. At the outset, the Veteran's psychiatric diagnoses include other unspecified depressive disorder. See August 2019 VA examination report. During the August 2021 hearing, the Veteran stated that his in-service MOS was a highly stressful job. Specifically, he reported that he worked on "the biggest nuclear missile that the Army had." Furthermore, the Veteran indicated that he witnessed flyovers of American planes "practicing [to] blow us up to bomb us in case we were overran by the enemy." He described this practice as the "country you were there to defend... practicing killing you if they had to." This occurred "10 to 20 times a day" over the course of up to "three and four months at a time." The Veteran believes that he developed a mental health problem as a result of the "stress and pressure" during service. See August 2021 Board hearing transcript at 4-5. The Veteran also testified that, shortly following separation from service, he was "a different person." He had become "distant," isolated, and unable to maintain a relationship "with most of my family." Id. at 4. As indicated by the Veteran during the August 2021 Board hearing, STRs do not contain evidence that the Veteran reported psychiatric symptoms during service. Furthermore, VA treatment records indicate that the Veteran first sought treatment for psychiatric symptoms in approximately September 2006. See VA psychology note dated September 29, 2006. However, VA treatment records show that the Veteran has consistently sought treatment for symptoms of depression since September 2006. Regarding his failure to report his psychiatric symptoms until approximately 2006, the Veteran testified that mental health is "taboo" in the African American community. As a result, he felt unable to "show sign of weakness." See August 2021 Board hearing transcript at 5. Nonetheless, the Veteran's competent description of stress and pressure during service is consistent with the circumstances of his service. See Caluza, 7 Vet. App. at 498. In this regard, the Veteran's military occupational specialty (MOS) during service was "Pershing Electric Materials Specialist." DD Form 214 uploaded on August 1, 2014. Therefore, the Veteran's MOS indicates that he worked with ballistic missile systems during service. Moreover, a DA Form 4515 indicates that the Veteran functioned in a "nuclear duty position." DA Form 4515 uploaded on March 7, 2014. Given the above, the Veteran's statements regarding psychiatric symptoms during service are credible. Furthermore, the Veteran's explanation for why he did not seek psychiatric treatment until September 2006 is highly plausible. Therefore, his statements regarding experience of psychiatric symptoms since service are also credible in this regard. The Veteran received an initial VA psychiatric examination in August 2019. The examiner provided a diagnosis of "Other Specified Depressive Disorder." However, the examiner opined that the Veteran's depressive disorder was less likely than not related to or aggravated by his service-connected Meniere's disease/otitis media. The examiner reasoned that the Veteran's medical records indicated onset of depression "after hurricane Katrina." Furthermore, the examiner stated that the Veteran's "mental health treatment has been largely focused on interpersonal issues rather than physical health problems." The examiner noted that the Veteran had "no specific mental health complaints related to otitis media" during the examination. Moreover, although the Veteran reported that his vertigo from Meniere's disease "has interfered with his ability to ride a motorcycle," the examiner found that "there are no indicators in treatment records that vertigo has caused his depression to worsen from its baseline." The examiner noted that the Veteran first sought VA mental health treatment in approximately 2006, following Hurricane Katrina. The examiner also indicated that the Veteran "did not subsequently report suicidal ideation "and "has not had any psychiatric hospitalizations" after vertigo was first noted by VA providers in 2014. Notably, however, the examiner's opinion did not address entitlement to service connection for an acquired psychiatric disorder on a direct theory of entitlement. Therefore, the August 2019 opinion is afforded no probative value with regard to direct service connection. Nonetheless, the Veteran has a current diagnosis of an acquired psychiatric disorder and has credibly reported symptoms during service with continuity after service. Although the Veteran, as a lay person, is not competent to know whether his feelings of anxiety and depression are symptoms of a diagnosed psychiatric disorder as described in the Diagnostic and Statistical Manual of Mental Disorders, he is competent to report his observable symptoms of feeling depressed and stressed out. In this case, those same symptoms in service were later associated with a diagnosed acquired psychiatric disorder. Lay evidence is competent and sufficient to establish a nexus when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the evidence is at least evenly balanced as to whether the Veteran's acquired psychiatric disorder had onset during service with symptoms continuing to the present. When the evidence is in equipoise, the Veteran prevails. Accordingly, resolving reasonable doubt in the Veteran's favor, service connection for an acquired psychiatric disorder, to include depression and anxiety, is warranted. See 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND 1. Entitlement to service connection for migraine headaches. The Veteran has not received an initial VA examination for his claimed headaches. VA must provide an examination when the record: (1) contains competent evidence of a current disability, (2) indicates that the signs and symptoms of the disability may be associated with active service, and (3) does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006). During the August 2021 Board hearing, the Veteran testified that he had been dealing with migraines since he was on active duty. He recalls working in an extremely loud environment during service, namely, a "power station" powered by a "helicopter motor." He "busted an ear drum" as a result of acoustic trauma. See August 2021 Board hearing transcript at 10-11. Following service, the Veteran continued to experience migraine symptoms but, due to financial barriers to seeking care, would "just suck it up and keep going." Id. Recent VA treatment records indicate that the Veteran has a history of migraine headaches. See VA otolaryngology note dated January 29, 2019. Furthermore, STRs indicate that the Veteran reported headaches twice during service. Specifically, an August 1984 STR shows that the Veteran complained of headaches alongside pain in right ear. See STRs dated August 17, 1984. An October 1985 STR indicated that the Veteran reported that he had been having headaches that week and had a history of possible "tension headaches." STRs dated October 10, 1985. Given the above, there is competent evidence of a current headache disability and an indication that the current headache disability may be associated with active service. As the record does not contain sufficient information to decide the claim, remand for an initial VA examination for the Veteran's migraine headaches is warranted. 2. Entitlement to service connection for heel spurs, right. The Veteran has not received an initial VA examination for his right foot heel spurs. During the August 2021 Board hearing, the Veteran stated that he first experienced right foot problems after being required to "run in boots and hike 25 miles" during drills. He recalls going to sick call "quite a few times" but does not recall seeking treatment for his right foot in particular. He reported intermittent flare-ups of foot pain since service. See August 2021 Board hearing transcript at 7. An August 2015 X-ray revealed evidence of right dorsal heel spurring. See VA X-ray report dated August 6, 2015. Accordingly, as there is evidence of current right heel spurring and an allegation of an in-service injury, with the possibility of a nexus, but with insufficient evidence to decide the claim, a remand for an initial VA examination for the Veteran's right heel spurs is warranted. In remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and likely etiology of his migraine headaches. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner must indicate that the claims file was reviewed in the examination report. The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a current migraine headache disability that had its onset during service or is otherwise related to disease or injury in service. In particular, the examiner should address August 17, 1984 and October 10, 1985 STRs showing reports of headaches by the Veteran during service. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported 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 disabilities, 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? 2. Schedule the Veteran for a VA examination to determine the current nature and likely etiology of his right heel spurs. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner must indicate that the claims file was reviewed in the examination report. The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right heel spurs are related to disease or injury in service. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported 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 disabilities, 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? L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.