Citation Nr: 21013460 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-06 465 DATE: March 9, 2021 ORDER Entitlement to service connection for a right ankle disability is dismissed. Entitlement to service connection for a lower back disability is granted. Entitlement to service connection for major depressive disorder secondary to a lower back disability is granted. FINDINGS OF FACT 1. In September 2020, the Board of Veterans’ Appeals (Board) received notification that the Veteran wished to withdraw the appeal as to the issue of service connection for a right ankle disability. 2. The Veteran suffered a lower back injury in service which caused his current lower back disability. 3. The Veteran’s major depressive disorder is caused by his service-connected lower back disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met as to the issue of service connection for a right ankle disability. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 2. The criteria for service connection for a lower back disability have been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for major depressive disorder have been satisfied. 38 U.S.C. §§ 1110, 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 April 2006 to August 2009, including service in Iraq. As a result of his military service, the Veteran received the Combat Infantryman Badge among other decorations. This matter comes before the Board from an April 2014 rating decision of the Department of Veterans Affairs (VA) regional office. The Veteran testified at a hearing with the undersigned in September 2020. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. 1. Right ankle disability The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In this case, at the hearing with the undersigned the Veteran withdrew his appeal as to the issue of a right ankle disability. The withdrawal request was discussed prior to the hearing and was acknowledged on the record. The withdrawal request was explicit, unambiguous, and done with a full understanding of the consequences. As there remain no allegations of errors of fact or law for appellate consideration regarding the issue of service connection for a right ankle disability, the Board does not have jurisdiction over this issue, and it is dismissed. 2. Lower back disability The Veteran contends that he suffered from a lower back disability in service after he felt a popping sensation in his back after lifting weights. Service treatment records show that the Veteran suffered from chronic low back pain since approximately March 2008. The Veteran sought treatment for his back pain and in April 2009 was diagnosed with chronic low back pain and sacroiliac joint dysfunction. He further was diagnosed with lower back pain with bilateral lower extremity radiculopathy in May 2009. Private treatment records also demonstrate that the Veteran sought treatment while on a home break in July 2008 and this physician continued to treat the Veteran in April 2011 and December 2013. In March 2014, the Veteran underwent a VA examination. The examiner stated that the Veteran has had chronic low back pain recorded in his service records with a 3/4-inch length discrepancy of left ilial crest from 1983 to 1987, for which he wore a shoe lift. According to the examiner, the Veteran continued on with his military career with no back condition and after service he worked construction and factory work, physically demanding jobs. The examiner opined the Veteran’s conditions are more likely related to his physically demanding work after the military and the conditions would not develop from a simple 3/4-inch shoe lift. The Board notes that this opinion is inadequate as the Veteran was not born until 1984, yet this opinion states that the condition began in 1983. A treatment note from March 2013 states that the Veteran’s back condition has progressed since service. A March 2015 opinion from a therapist indicates the Veteran’s symptoms are a direct result of an accident sustained while lifting weights around 2007. According to the therapist, due to the nature of soft-tissue injuries, the Veteran may continue to experience periodic exacerbations of the original symptoms. The Veteran submitted a private opinion in August 2017. It is the physician’s opinion that the Veteran suffered a herniated disc while serving in the military. It is the physician’s opinion that this herniated disc is more likely than not related directly to his military service. In October 2017, the Veteran underwent another VA examination. The examiner opined the Veteran’s current condition diagnosed in 2013 is less likely as not incurred in or caused by his back pain in service. The examiner explained that low back pain in service was not diagnosed as chronic and did not require ongoing treatment for a chronic condition. The pain in service is more consistent with intermittent and acute strain, without a back condition that required ongoing treatment. The rationale for this conclusion is that the Veteran did not require ongoing medical treatment for a chronic condition of the low back following separation from service, and in fact, did work in a physically demanding environment. The Veteran sustained an acute injury lifting a case of water and presented to the emergency room in 2013. The Veteran submitted a private opinion from a physician in May 2020 that stated that it is more likely than not that his back disability is directly related to his military service. However, there was no rationale for this opinion. In September 2020, the Veteran submitted a buddy statement from the company medic who treated him in service. This buddy recounted that prior to his injury, the Veteran was very athletic. In service, the Veteran came to this medic because he did not want to go to sick call for fear of being sent home. After the injury, the Veteran was not the same athletic soldier that he was prior to his deployment. The Veteran’s mother also recounted how prior to service the Veteran was very athletic but after his discharge, he suffered from intense back pain. Another opinion was submitted from the Veteran’s therapist in September 2020. The Veteran was first seen by this provider in April 2010 and the provider reviewed the record. According to the provider, the Veteran continues to experience chronic symptoms which are more likely than not a direct and lingering result of the accident sustained while lifting weights. The Veteran testified at a hearing in September 2020. He continued to recount that he injured his back in service when lifting weights and continued to have pain since his discharge. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran’s current lower back disability is directly related to his in-service injury. Service records document that the Veteran suffered from chronic back pain, despite the October 2017 VA opinion stating that it was not diagnosed as a chronic condition. Private treatment records demonstrate that he sought treatment while on break from deployment in 2008 and continuously sought treatment, including in 2011 which was prior to the 2013 injury that the VA examiner relied upon. The Veteran’s private providers have continuously stated that his current lower back problems are directly related to his military service. The Board finds the Veteran’s testimony and the submitted lay statements credible regarding the origin of his injury and its progression. As such, entitlement to service connection for a lower back disability is granted. 3. Acquired psychiatric disorder The Veteran contends that he suffers from an acquired psychiatric disorder, either as a result of his military service or as secondary to his lower back disability. Service treatment records are silent for any complaints, treatment, or diagnosis of an acquired psychiatric disorder. The Veteran underwent VA examinations in October 2017 and October 2020, but he was not diagnosed with any psychiatric disorder other than cannabis use disorder. The Veteran submitted a private psychologist’s opinion in October 2020 where he was diagnosed with major depressive disorder. According to the psychologist, within a reasonable degree of psychological certainty, the Veteran’s major depressive disorder and resulting emotional distress are more likely than not secondary to his back injury incurred in service and the resulting level of physical disability from that disability. The psychologist provided supporting facts and rationale for this conclusion. The Veteran’s mother submitted a lay statement in September 2020. She stated that after service the Veteran became withdrawn, unable to focus, and agitated easily. The Veteran testified at his September 2020 hearing that he attempted to seek treatment after service, but due to needing to lay on the floor due to his back pain, the physician was not comfortable treating him. This frustrated the Veteran such that he did not continue seeking care. (Continued on the next page.) Resolving doubt in favor of the Veteran, the Board finds that the Veteran suffers from major depressive disorder as a result of his service-connected lower back disability. Service connection for major depressive disorder, as caused by the Veteran’s now service-connected lower back disability, is granted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, 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.