Citation Nr: 21021660 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-19 861 DATE: April 13, 2021 ORDER Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a back disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a right hand disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against a finding that the Veteran has had a left foot disability at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against a finding that the Veteran has had a back disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hand disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left foot disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1986 to May 1989. This matter comes before the Board of Veterans’ Appeals (Board) from December 2013 and December 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). Though the appeals from these rating decisions have come to the Board in two separate appeal streams, the Board has merged them. Both appeals have both been certified to and docketed at the Board, and the Veteran and his representative have been notified of their docketing. The Board notes that in January 2014 correspondence, the Veteran requested to have his claim expedited on account of being homeless. See 38 U.S.C. § 7107(b); 38 C.F.R. § 20.902(c). A July 2017 VA psychiatry record notes that the Veteran is not homeless and is stably housed. Therefore, the motion to advance the case on the docket based on financial hardship due to homelessness is denied. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 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). Right Hand Disability The Veteran contends that his right hand disability, to include numbness of his index and middle fingers, is related to service. The Board concludes that, while the Veteran has a diagnosis of lateral epicondylitis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran underwent extensive testing for right finger numbness in 2013 and 2014, to include two EMGs and an MRI. All nerve conduction studies were normal, but October 2013 VA treatment records indicate his symptoms may be consistent with lateral epicondylitis and prescribed a forearm band. Service treatment records are also silent for any right hand disability. The Veteran’s March 1989 separation examination was normal with regard to the neurological system, and the Veteran denied having any neuritis or paralysis in his Report of Medical History. The Veteran has not provided information regarding how his right hand condition is related to service. VA treatment records are somewhat unclear regarding the onset of symptoms, but do not indicate onset of symptoms in or proximate to service. August 2013 records indicate onset of right index finger symptoms in early 2013, and September 2013 records indicate onset of right middle finger symptoms five to ten years prior after he jammed his middle finger playing basketball. November and December 2014 VA treatment records also indicate the right hand condition began in 2013 or 2014; however, these records indicate the condition began as shoulder pain related to a gunshot wound to the face during a robbery in 1992, and progressed to right hand symptoms. In summary, there are no indications of right index finger symptoms prior to 2013, or of a service-related incident for either finger. The Board acknowledges that the Veteran was not afforded a VA examination regarding his right hand claim. On these facts, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no in-service event, injury or occurrence, no examination is required. Absent evidence that indicates that the Veteran’s right hand condition is related to an injury or symptoms in service, the Board finds that a VA examination or opinion is not necessary for disposition of the claim. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion regarding the Veteran’s claim for entitlement to service connection for a right hand condition have been met. 38 C.F.R. § 3.159(c)(4). While the Veteran believes his right hand condition is related to service, the Board reiterates that the preponderance of the evidence weighs against findings that an in-service injury, event, or disease occurred. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Left Foot Disability The Veteran contends that his left foot disability, to include numbness, is related to service. The Board concludes that the Veteran does not have a current diagnosis of a left foot disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). August 2013 VA treatment records reveal reports of left foot numbness for three months. Examination found some sensory deficit to the left foot. The Veteran was referred for labs and an EMG and MRI to determine the cause. A September 2013 MRI and October 2013 EMG were normal. The VA examiner who reviewed the October 2013 EMG findings indicated that there was no evidence of peripheral neuropathy to explain the Veteran’s left foot numbness. The Board notes that February 2016 VA treatment records reveal reports of chronic pain on the left side of the Veteran’s body after a 1992 gunshot wound. However, as discussed above, the gunshot wound occurred after service. Lastly, the Board notes that there is no indication that the Veteran’s symptoms, to include numbness and pain, have caused him any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the Veteran has not had any symptoms in the left foot causing functional impairment at any point during the appeal period. Therefore, the Board cannot grant his claim under any theory of entitlement. While the Veteran’s application for service connection for left foot numbness illustrates that the Veteran believes he has a current disability for VA purposes, he is not competent to provide a diagnosis in this case. The issues are medically complex as they require the interpretation of diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board does not question the Veteran’s sincerity in his belief that service connection is warranted for left foot numbness. However, without evidence of a current left foot disability or symptoms causing functional impairment of earning capacity, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such, service connection for a left foot disability is denied. Back Disability The Veteran contends that his back disability, to include pain, is related to service. The Board concludes that the Veteran does not have a current diagnosis of a back disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. November 2017 VA treatment records indicate reports of chronic back pain radiating from his neck after the 1992 gunshot wound to his face resulting in nerve damage to the right neck, shoulder, and arm. The assessment was neck pain radiating to his arm and back. The Veteran was noted to be prescribed meloxicam for the pain but refused a referral to physical therapy. As discussed above, the gunshot wound occurred after service. Additionally, while May 2015 VA psychiatric treatment records indicate chronic back pain with a history of surgery, the statement appears to be based on the Veteran’s self-reported medical history, which is inconsistent with VA treatment records that show subjective complaints of back pain, but no diagnosis of any back condition, and no other indications of a prior back surgery. Lastly, the Board notes that there is no indication that the Veteran’s symptoms, to include pain, have caused him any functional impairment of earning capacity. See Saunders, 886 F.3d 1356. The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. § 1110; Degmetich, 104 F.3d at 1332. Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the Veteran has not had a back condition or any symptoms of back pain causing functional impairment at any point during the appeal period. Therefore, the Board cannot grant his claim under any theory of entitlement. While the Veteran’s application for service connection for a back condition illustrates that the Veteran believes he has a current disability for VA purposes, he is not competent to provide a diagnosis in this case. The issues are medically complex as they require the interpretation of diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. The Board does not question the Veteran’s sincerity in his belief that service connection is warranted for a back disability. However, without evidence of a current back disability or symptoms causing functional impairment of earning capacity, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 53. As such, service connection for a back disability is denied. REASONS FOR REMAND Acquired Psychiatric Disorder The Veteran initially filed a claim for service connection for anxiety, and later claimed posttraumatic stress disorder (PTSD) related to witnessing a fellow sailor commit suicide during training. The Veteran has reported having issues with depression, paranoia, hearing voices, and having nightmares primarily relating to witnessing the suicide of a friend during service. See February 2016 VA treatment records. VA treatment records over the appellate period show he has been diagnosed with major depression with paranoia, alcohol and cannabis abuse, schizoaffective disorder, and PTSD. See December 2013, May 2015, and August 2015 VA treatment records. In December 2013, the Veteran reported he began drinking alcohol in the military to help him sleep and cope with nightmares. A review of the record indicates that the Veteran has not been provided with a VA examination. VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 83. The Board finds that there is sufficient evidence of record for this duty to assist to attach. Accordingly, an appropriate examination shall be conducted upon remand. Migraine Headaches The Veteran contends his migraine headaches are related to service. April 2014 VA treatment records reveal a diagnosis of intractable muscle tension headache with secondary migraine symptom. Though this physician indicated the condition was due to the 1992 gunshot wound, December 2013 VA treatment records indicate the Veteran’s service-connected tinnitus may contribute to or exacerbate the Veteran’s headaches. A review of the record indicates that the Veteran has not been provided with a VA examination. VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 83. The Board finds that there is sufficient evidence of record for this duty to assist to attach. Accordingly, an appropriate examination shall be conducted upon remand. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and any representative. 2. After completion of directive #1, schedule the Veteran for a VA examination for his acquired psychiatric disability, to include major depression with paranoia, alcohol and cannabis abuse, schizoaffective disorder, and posttraumatic stress disorder (PTSD). The examiner must review the claims file. The examiner is asked to provide a response to the following: For each acquired psychiatric disability diagnosed, it is at least as likely as not (a 50/50 probability or greater) that the Veteran’s disability is related to service, to include the claimed event of witnessing a friend’s suicide? If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met, provide a description of the stressor(s) upon which the diagnosis is made, and opine whether it is at least as likely as not that PTSD is related to a claimed in-service stressor. The examiner must provide a complete explanation for all opinions. If the examiner is unable to render the requested opinions without resorting to speculation, the examiner must state whether there is inadequate factual information, whether the question falls beyond the knowledge of the examiner, whether the question falls beyond the scope of the medical community, or another reason. 3. After completion of directive #1, schedule the Veteran for a VA examination for his migraine headaches. The examiner must review the claims file. The examiner is asked to provide a response to the following: Are migraine headaches at least as likely as not (a 50/50 probability or greater) related to service? Are migraine headaches at least as likely as not (a 50/50 probability or greater) proximately due to service-connected tinnitus? Are migraine headaches at least as likely as not (a 50/50 probability or greater) aggravated, i.e., worsened beyond their natural progression, by service-connected tinnitus? The examiner must provide a complete explanation for all opinions. J. SAIKH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, Associate 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.