Citation Nr: A21019482 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 200123-97500 DATE: December 7, 2021 ORDER Readjudication of the claim of entitlement to service connection for a right wrist nerve and fingers/forearm disability is warranted. Entitlement to service connection for chronic headaches is granted. Entitlement to service connection for a lumbosacral strain is granted. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, is denied. REMANDED Entitlement to service connection for a right wrist nerve and fingers/forearm disability is remanded. Entitlement to service connection for a prostate disability is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for allergic rhinitis is remanded. FINDINGS OF FACT 1. New evidence has been received after the June 2019 denial of the claim that is relevant to the issue of entitlement to service connection for a right wrist nerve and fingers/forearm disability. 2. The competent evidence is in equipoise as to whether the Veteran's chronic headaches are related to service. 3. The competent evidence is in equipoise as to whether the Veteran's lumbosacral strain is related to service. 4. The probative and competent evidence of record indicates that the Veteran has not had a diagnosed acquired psychiatric disorder, to include anxiety, during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for readjudicating the service connection claim for a right wrist nerve and fingers/forearm disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(d), 3.2501(a). 2. The criteria for establishing service connection for chronic headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for establishing service connection for a lumbosacral strain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for establishing service connection for an acquired psychiatric disorder, to include anxiety, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1969 to February1991 . This case comes to the Board of Veterans Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Reginal Office (RO). In August 2019 and December 2019 rating decisions the RO denied the claims currently on appeal. The Veteran was advised of the decisions in September 4, 2019, December 11, 2019, and December 16, 2019 notification letters. In January 2020, the Veteran timely appealed the denial of his claims and requested direct review of the evidence considered by the RO. Evidence was added to the claims file during a period when new evidence was not allowed. As the Board is deciding the claims of entitlement to service connection for a thoracolumbar spine disability, headaches, and an acquired psychiatric disorder, it may not consider this evidence in its decision. 38 C.F.R. § 20.300 (2020). The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501 (2020). If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Regarding the remaining claims, the Board is remanding them for further development. As such, the additional evidence will be considered by the RO in the adjudication of those claims. 1. Whether new and relevant evidence was received to readjudicate the claim of entitlement to service connection for a right wrist nerve and fingers/forearm disability The Veteran's claims for service connection for a right wrist nerve and finger / forearm disability was last denied in a June 2019 rating decision on the basis that there was no evidence of a diagnosed disability. In November 2019, the Veteran filed a supplemental claim. In a December 2019 rating decision, the RO found that new and relevant evidence had not been received since the June 2019 rating decision to warrant readjudication of the claim. The Veteran timely appealed. Under the AMA, if new and relevant evidence is presented or secured with respect to a claim, the AOJ will readjudicate the claim taking into consideration all the evidence of record. 38 C.F.R. § 3.2501 (2020). New evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501(a)(1) (2020). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(2) (2020). Upon review of the record, the Board finds that new and relevant evidence has been received to warrant readjudication of the claim for service connection. Since the June 2019 rating decision, VA records were received that noted that the Veteran had pain and numbness that radiated into his right elbow and fingers. See July 31, 2019 VA record. The Board finds that the treatment record constitutes new and relevant evidence, and readjudication of the claim of entitlement for service connection for a right wrist nerve and fingers/forearm disability is warranted. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2020). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 2. Entitlement to service connection for chronic headaches The Veteran asserts that his headaches are related to service because they began during service and have continued since that time. A service treatment record from November 1969 indicates that the Veteran reported headaches. A July 1990 report of medical history at retirement indicates that the Veteran endorsed frequent or severe headaches. While the corresponding July 1990 report of medical examination indicated that neurologic examination was normal, in the remarks section the clinician indicated that the Veteran had "[f]requent headaches, secondary to astigmatism in left eye." There is no evidence indicating that the Veteran's headaches existed prior to acceptance. See November 1968 report of medical examination at enlistment. VA treatment records from February 22, 2008, March 28, 2018, and December 5, 2018 indicate that the Veteran reported ongoing headaches that he treated with over-the-counter medication. An August 2019 VA headache examination report noted that the Veteran was diagnosed with headaches. It further noted that the Veteran reported that his headaches started in 1969 and that he continued to experience reoccurring headaches since that time. In the corresponding opinion, a VA nurse practitioner opined that the Veteran's headaches were less likely than not related to service. Her rationale was that there was no current treatment for headaches and the Veteran's medical records were silent for headaches for a long period after service. Therefore, a nexus could not be established. In an August 2019 addendum opinion, a VA doctor opined that it was at least as likely as not that the Veteran's headaches were incurred in or cause by service. In support of that finding, the examiner stated that the Veteran was diagnosed with headaches secondary to astigmatism during service and it was at least as likely as not that he continued to have frequent headaches secondary to his left eye astigmatism. Based on all the evidence, the Board further finds that the evidence is at least in equipoise as to whether the Veteran's headaches are related to service. As discussed above, the service treatment records indicate that the Veteran was diagnosed with headaches while on active duty, the Veteran has reported ongoing headaches since that time, and VA treatment records document ongoing reports of headaches. Moreover, an August 2019 VA examiner opined that the Veteran's current headaches began during service and have continued since that time. Therefore, the Board finds that the Veteran's headaches were incurred during his military service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's current headaches were incurred in service. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020). 3. Entitlement to service connection for a thoracolumbar spine disability The Veteran asserts that his current thoracolumbar spine disability is related to his duties as a flight line / jet mechanic. His DD Form 214 confirms that the Veteran's military occupational specialty (MOS) was aero propulsion support. Service treatment records from June 16, 1975 and June 18, 1975 indicate that the Veteran reported back pain and was diagnosed with a muscle strain. A July 1990 report of medical examination at retirement indicates that spine examination was notable for thoracic scoliosis. On a January 1994 VA Form 21-526, the Veteran reported having "back problems." A July 13, 2000 VA treatment record notes that the Veteran reported low back pain that he described as "a little nagging for years." The Veteran was provided a VA thoracolumbar spine examination in March 2019. He reported that his back symptoms began during service and had worsened since that time. He was diagnosed with a lumbosacral strain. The examiner opined that the Veteran's current lumbosacral strain was at least as likely than not related to service. The examiner explained that the Veteran had a MOS working with planes that required him to constantly go up and down ladders, lift heavy objects, and bend at the waist and that such actions can cause back problems. Therefore, his current back problems were at least as likely as not a result of the job he had during service. In an August 2019 addendum, the same VA clinician clarified that while the Veteran's July 1990 report of medical examination at retirement noted thoracic scoliosis, the Veteran's only current diagnosis was a lumbosacral strain. In support of that the clinician noted that the March 2019 examination did not reveal thoracic scoliosis. The VA clinician restated his opinion and prior rationale that the Veteran's lumbosacral strain was related to the Veteran's in-service job duties. In a December 2019 addendum opinion, a different VA clinician opined that the Veteran's lumbosacral strain was less likely than not related to service. The clinician stated that although the Veteran had back pain during service in 1975, the condition was acute and transient and did not result in continuous back pain since that time. The examiner noted that the Veteran's retirement examination did not note back pain and there were no further complaints of back pain until 2000. Therefore, the Veteran's current back pain was more likely a product of wear and tear, and natural aging. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbosacral strain is related to service. In this case, the record contains opinions from two VA clinicians, one positive and one negative. With respect to the negative opinion, the Board finds that the clinician essentially relied on the absence of documented medical treatment and did not address the Veteran's reports regarding wear and tear from his in-service duties. Additionally, while the examiner indicated that the first post-service report of back pain was in 2000, the clinician did not address the Veteran's January 1994 report of back problems or the fact that the July 2000 VA record noted that the Veteran reported that his back pain had been a nagging problem "for years." While the positive opinion was accompanied by a limited rationale, taken in combination with the other evidence of record, the Board finds the evidence to at least be in a state of equipoise. The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Accordingly, service connection for a lumbosacral strain is warranted. 38 C.F.R. § 3.102 (2020). 4. Entitlement to service connection for an anxiety disorder The Veteran asserts that he has anxiety related to service. After reviewing of the claims file, the Board finds that the Veteran's treatment records are silent for any reports of, or diagnosis related to anxiety or an acquired psychiatric disorder during the course of the claim. Additionally, the Veteran's mental health screenings were negative for mental health symptoms. See e.g., VA records from June 5, 2019 and March 28, 2018. The Veteran, as a lay person, is competent to report what he has experienced, including feeling anxious. However, the record shows that the Veteran has not been diagnosed with anxiety or an acquired psychiatric disorder. Whether the Veteran has an acquired psychiatric disorder, such as anxiety, is a complex medical question. Accordingly, appropriate medical expertise is required to make this determination. In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to diagnose a psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board affords more weight to the medical evidence of record, including the VA treatment records and mental health screenings, than it does to the Veteran's assertions that he has an acquired psychiatric disorder, including anxiety. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131 (2012). In the absence of competent evidence showing a current psychiatric diagnosis, service connection is not warranted. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020) (holding that the "definition of a 'disability' is constrained . . . by VA's decision to limit the psychiatric disabilities it would compensate," i.e., VA's regulations expressly limit compensation for psychiatric disabilities by requiring a diagnosis that conforms to the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders). The Board notes that an examination and opinion was not obtained with respect to this issue. However, as the medical evidence for consideration fails to treatment or diagnosis of a mental disorder, an examination is not required. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). In sum, the Board finds that the preponderance of the evidence is against the claim, and service connection for an acquired psychiatric disorder, to include anxiety, is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right wrist nerve and fingers/forearm disability is remanded. 2. Entitlement to service connection for a prostate disability is remanded. 3. Entitlement to service connection for sinusitis is remanded. 4. Entitlement to service connection for allergic rhinitis is remanded. Prior to the December 2019 rating decision on appeal, VA records obtained in November 2019, indicated there were outstanding VA treatment records that were potentially relevant to the Veteran's right wrist nerve claim. Specifically, VA treatment records from November 2, 2019 and October 6, 2019 indicate that a non-VA electromyography (EMG) record from October 7, 2019 and a September 13, 2019 non-VA record from Baylor Scott & White had been scanned into VistA Imaging. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. Prior to the December 2019 rating decision on appeal, the record indicated that another VA examination and opinion were required to address whether the Veteran had a right wrist nerve disability that was caused or aggravated by his service-connected right navicular fracture with degenerative joint disease and right wrist tendinitis. The Veteran was provided a VA peripheral nerve examination in June 2019. While the examiner indicated that the Veteran did not have a peripheral nerve diagnosis because there were no findings, signs, or symptoms to support a diagnosis, the examiner also stated that the Veteran had severe constant pain, severe intermittent pain, moderate paresthesias, and mild numbness of the right upper extremity attributable to a peripheral nerve condition. Thus, a remand is required to reconcile the conflicting findings. Prior to the August 2019 rating decision on appeal, the record indicated that a VA examination and opinion were required to address whether the Veteran had allergic rhinitis or sinusitis related to service. Specifically, VA treatment records indicated that the Veteran had sinus symptoms, including a runny nose and nasal congestion. See e.g., January 2, 2018 VA record. Additionally, service treatment records indicate that the Veteran endorsed allergies was observed to have "boggy nares," and was treated for nasal congestion and sinusitis during service. See e.g., December 18, 1972, July 5, 1978, and October 27, 1983 service treatment records. Thus, a remand for a VA examination and medical opinion is required. Prior to the August 2019 rating decision on appeal, the record indicated that a VA examination and opinion were required to address whether the Veteran has a prostate disability related to service. Specifically, VA treatment records indicated that the Veteran had benign prostatic hyperplasia (BPH). See e.g. July 22, 2015, June 16, 2010, and August 21, 2000 (noting prostate enlargement and a diagnosis of BPH). Additionally, service treatment records indicate that the Veteran was treated for prostatitis, genitourinary symptoms, and had a "boggy prostate." See e.g., May 5, 1972, July 26, 1972, and August 16, 1977 service treatment records. Thus, a remand for a VA examination and medical opinion is required. The matters are REMANDED for the following actions: 1. Obtain the VistA Imaging records referenced in the November 2, 2019 and October 6, 2019 VA record entries. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain a VA examination and/or addendum medical opinion that addresses whether the complaints of severe constant pain, severe intermittent pain, moderate paresthesias, and mild numbness of the right upper extremity noted in the June 2019 peripheral nerve examination are at least as likely as not related to service, or are caused or aggravated by the service-connected right navicular fracture. 3. Provide the Veteran with a VA examination to obtain an opinion that addresses whether a current sinus and rhinitis disability is at least as likely as not related to service. 4. Provide the Veteran with a VA examination to obtain an opinion that addresses whether a current prostate disability is at least as likely as not related to service. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.