Citation Nr: 21026719 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-59 464 DATE: May 3, 2021 ORDER 1. Entitlement to service connection for a lumbar spine disability (claimed as a back disability), to include herniated disc and arthritis, is denied. 2. Entitlement to service connection for right great toe disability is denied. 3. Entitlement to service connection for a right tibia/fibula disability is denied. REMANDED 4. Entitlement to service connection for a psychiatric disorder, to include major depressive disorder, is remanded. FINDINGS OF FACT 1. A lumbar spine disability, to include herniated disc of the lumbar spine and arthritis, did not have its onset during active service, was not manifested within one year of service discharge, and is not otherwise related to active service. 2. A right toe disability, manifested as numbness as shown in the VA treatment records, is associated with the non-service-connected lumbar spine disability; the disability did not have its onset in service and is not otherwise related to service. 3. Right tibia/fibula disability, manifested as numbness in the right lower extremity as shown in VA treatment records, is associated with the non-service-connected lumbar spine disability; the disability did not have its onset in service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability, to include herniated disc and arthritis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection right great toe disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection right tibia/fibula disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1986 to January 1990 and from February 1991 to April 1991. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 1. Entitlement to service connection for a lumbar spine disability The Veteran believes that his lumbar spine disability had its onset in service. The Veteran filed his claim for service connection in March 2014. In a statement he submitted at that time, he stated his lower back manifested while in service and was most pronounced while trying to exercise. The Board has carefully reviewed the preponderance of the evidence is against the claim for service connection for a lumbar spine disability. The reasons follow. As to evidence of a current disability, an April 2014 VA treatment record shows the Veteran reported that he injured his back in August 2013 while at work and that he underwent magnetic resonance imaging (MRI) two weeks prior and he was informed that he had a herniated disc, and an electromyography was normal. A January 2015 VA treatment record shows that the MRI scan was reviewed and the Veteran was assessed with chronic low back pain and right foot numbness in the setting of known herniated disc at lumbar spine per MRI; likely radiculopathy right lower extremity; resolved lower back pain and significantly improved numbness at right foot. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records do not show that the Veteran complained of or was treated for a lumbar spine disease or injury during either period of active duty. In a December 1989 physical reenlistment examination, the Veteran reported he was in good shape with no known medical problems and he was considered fit for service. Reports of Medical History from January 1990 and April 1991 show that the Veteran specifically denied a history of recurrent back pain, arthritis, and bone, joint or other deformity. He also denied experiencing any illness or injury other than those noted on the report. Furthermore, the January 1990 and April 1991 Reports of Medical Examination show that clinical evaluations of the Veteran's spine were normal at service discharge from both periods of active duty. Also, a February 1991 dental health questionnaire reflects the Veteran denied having painful joints. Thus, the preponderance of the evidence is against a finding that the Veteran had a disease or injury involving the lumbar spine during either or both periods of active duty, and the facts do not establish that the second element of a service-connection claim is met. The Board notes that the record does not reflect that the Veteran has been diagnosed with arthritis of the lumbar spine and the MRI documented a herniated disc. The Veteran has indicated that he was informed that he was diagnosed with arthritis based on x-ray imaging in an April 2014 VA treatment record. Nonetheless, even if the diagnosis of arthritis of the lumbar spine is valid, there is no competent evidence that arthritis of the lumbar spine manifested during active service or within one year of the Veteran's service discharge so as to warrant a grant of presumptive service connection for arthritis as a chronic disease. The Board also finds that the preponderance of the evidence is against a nexus between the post service lumbar spine disability and service. As noted above, the Veteran denied a history of recurrent back pain at service discharge from both periods of active duty. The first showing of lumbar spine symptoms was in an April 2014 VA treatment appointment, when the Veteran reported sustaining a lumbar spine injury while on the job in August 2013 and being out of work for three weeks and, when he went back to work in January 2014, he was laid off. He reported that he reinjured himself at home getting out of bed associated with numbness in the right leg and foot. A May 2014 VA treatment record shows it was the Veteran's initial consultation for the lumbar spine pain. He again reported the work-related injury in August 2013 at his job as an electronic repair technician while he was picking up equipment to a conveyer and felt his legs giving out and had a sharp pain in his back and stomach. He reported he was sent to his job's clinic for evaluation of the low back pain. An MRI showed a herniated disc. He denied back injuries prior to August 2013. A May 2015 VA treatment record noted the Veteran reported chronic left pelvic pain radiating to the back after an injury after shoveling. Here, the evidence shows that the Veteran suffered a post-service work injury in August 2013, at which time, an MRI documented a herniated disc, which is more than 22 years following service discharge and is further evidence that weighs against a finding that a lumbar spine disability had its onset in service. Thus, to the extent that the Veteran alleges having experienced lumbar spine symptoms continuously since service, the Board finds such allegations are not credible for two reasons. First, the Veteran denied a history of recurrent back pain when discharged from both periods of active duty in 1990 and 1991. Second, when being treated by VA for his lumbar spine disability, he specifically denied "back injuries prior to August 2013." This admission from the Veteran is highly reliable, as the Veteran was seeking medical treatment at that time. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). His explicit denial of any back injuries prior to the August 2013 work-related injury is evidence against a finding that he was experiencing ongoing back/lumbar spine symptoms since service. The Board finds that the criteria for entitlement to a VA examination or medical opinion is not warranted. 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, an in-service event, injury or disease, evidence that the current disability may be associated with an event, injury, or disease in service, and there is insufficient medical evidence of record to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As explained above, the weight of the evidence demonstrates no in-service event, injury, or disease, and the Board finds that the credible evidence does not support that the disability may be associated with an event, injury, or disease in service, which are requirements for entitlement to a VA examination/medical opinion. Here, the weight of the evidence indicates that the Veteran's lumbar spine disability is related to an August 2013 work-related injury. The Board finds that further development is not necessary, and VA has no duty to assist in providing a VA examination and/or medical opinion. Hence, while the evidence shows that the Veteran has a current diagnosis of a lumbar spine disability, the preponderance of the evidence is against a finding that his current disability has its onset in service or is otherwise related to service. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection for a lumbar spine disability, to include herniated disc and arthritis, is denied. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for right great toe disability 3. Entitlement to service connection for right tibia/fibula disability The Veteran believes that right great toe and tibia/fibula disabilities had their onset in service. The Veteran filed his claims for service connection in March 2014. However, on the application he did not report a specific date that his right great toe, and tibia/fibula disabilities, began or explain why he believed the disabilities were related to service. The Board has carefully reviewed the preponderance of the evidence is against the claim for service connection for right great toe and tibia/fibula disability. The reasons follow. The evidence does not reflect the Veteran has disabilities characterized as a deformity of the right big toe or an impairment of the tibia/fibula. Rather the evidence reflects the Veteran suffers from neurological symptoms associated with a non-service-connected herniated disc of the lumbar spine, which the Board has denied a claim for such disability within this decision. In that regard, an April 2014 VA treatment record shows the Veteran reported that he injured his back in August 2013 and that he had an MRI two weeks prior and he was informed that he had a herniated disc and an electromyography was normal. A January 2015 VA treatment record shows that the MRI scan was reviewed that showed "mod-sized central and L paracentral herniated disc L3-L4, there is extrusion of disc material behind body of L4 disc material occupies lateral recess of L4 and results in significant compromise of left sided traversing nerve root of L4;+ mild diffuse disc bulge L4-L5 results in mild flattening of anterior margin of thecal sac." The assessment was chronic low back pain and right foot numbness in the setting of known herniated disc at lumbar spine per MRI; likely radiculopathy right lower extremity; resolved lower back pain and significantly improved numbness at right foot. A March 2015 VA treatment record shows the Veteran reported a 1986 in-service injury to his right toe. The physician noted the Veteran had impaired light touch sensation at medial/plantar aspect of the right foot. The physician also assessed the Veteran with chronic lower back and right foot numbness in the setting of known herniated disc at lumbar spine per MRI; likely radiculopathy of right lower extremity; resolved lower back pain and significantly improved numbness at right foot status post recent physical therapy and lumbar epidural steroid injections; however now with burning sensation at left groin/scrotal area radiating to the back. An internal medicine work-up was negative and the symptoms were suspected to be related to herniated disc at lumbar area. A subsequent March 2015 VA treatment record shows an electromyography (EMG) was normal as to the lower extremities/lower back and electrophysiologically, there was no evidence of bilateral L4-S1 lumbar radiculopathy and no evidence of neuropathy or nerve injury. Here, the only disability in the lower extremities, is right foot and right lower extremity numbness related to a herniated disc that has since improved significantly or resolved. The requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he or she files his or her claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that a recent diagnosis of disability prior to the Veteran filing a claim is relevant evidence that must be considered). Therefore, although the Veteran was diagnosed with right foot and lower extremity disabilities manifested by numbness during the appeal period, these disabilities are associated with the herniated disc of the lumbar spine which are related to an August 2013 post-service work-related injury. The Board finds the clinical findings documented in the VA treatment records highly probative, as they were based on physical examination and continuous treatment of the Veteran and review of the Veteran's medical history, to include imaging results. The Board also notes the service treatment records do not show that the Veteran complained of or was treated for a right great toe, foot, and/or tibia/fibula disability during either period of active duty. In a December 1989 physical reenlistment examination, the Veteran reported he was in good shape with no known medical problems and he was considered fit for service. Reports of Medical History from January 1990 and April 1991 show that the Veteran specifically denied a history of pain, arthritis, bone, joint or other deformity, trick or locked knee, foot trouble, neuritis, and paralysis. He also denied experiencing any illness or injury other than those noted on the report. Furthermore, the January 1990 and April 1991 Reports of Medical Examination show that the clinical evaluations of the Veteran's feet, lower extremities, and neurological system were all normal. Also, a February 1991 dental health questionnaire reflects the Veteran denied having painful joints. Thus, the preponderance of the evidence is against a finding that the Veteran had a right great toe, or tibia/fibula disabilities during either period of active duty, and the facts do not establish that the second element of a service-connection claim is met. The Board also finds the preponderance of the evidence is against a nexus between the current disabilities and service. The April 2014 VA treatment record shows the Veteran reported that he injured his back in August 2013 and he was out of work for three weeks and that he went back to work in January 2014 and was laid off. He reported that he reinjured himself at home getting out of bed associated with numbness in the right leg and foot. This was the first instance of complaints of symptoms related to the right lower extremity. A May 2014 VA treatment record shows it was the Veteran's initial consultation for back pain. He again reported the work-related injury in August 2013 at his job as an electronic repair technician while he was picking up equipment to a conveyer and felt his legs giving out and had a sharp pain in his back and stomach. Here, the evidence shows that the Veteran suffered a post-service work injury in August 2013, at which time an MRI documented a herniated disc that has been determined to be the cause of the Veteran's neurological symptoms in the right lower extremity, to include the foot. Thus, this injury occurred more than 22 years following service discharge and is further evidence that weighs against a finding that a right great toe or tibia/fibula disabilities had its onset in service or are otherwise related to a service-connected disability. While the Veteran has not provided specific allegations regarding what he believed caused the right great toe and tibia/fibula disabilities and why he believes these disabilities are related to service, to the extent that he alleges having experienced symptoms in his lower extremities, to include the right great toe and/or the right tibia/fibula, continuously since service, the Board finds such allegations are not credible for the same reasons discussed above regarding the claim for service connection for a lumbar spine disability. He denied musculoskeletal and neurological symptoms when being discharged from both periods of active duty, and clinical evaluations of the lower extremities, the feet, and the neurological system were normal. When he sought initial treatment for his lumbar spine with VA in 2014, he had the wherewithal to report his lumbar spine problems being due to the August 2013 work-related injury and experiencing numbness in the right foot and leg after reinjuring his back when attempting to get out of bed. His report of numbness in the right leg and foot being associated with the re-injury at home is evidence against a finding that he was experiencing ongoing symptoms in the years following service discharge. The Board finds that the criteria for entitlement to a VA examination or medical opinion is not warranted. 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, an in-service event, injury or disease, evidence that the current disability may be associated with an event, injury, or disease in service, and there is insufficient medical evidence of record to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As explained above, the weight of the evidence demonstrates no in-service event, injury, or disease, and the Board finds that the credible evidence does not support that the disabilities may be associated with an event, injury, or disease in service, which are requirements for entitlement to a VA examination/medical opinion. Here, the weight of the evidence indicates that the Veteran's right great toe or tibia/fibula disability manifested by numbness is related to a post-service injury either at work or in his own home, which resulted in a herniated disc. The Board finds that further development is not necessary, and VA has no duty to assist in providing a VA examination and/or medical opinion. In reviewing the evidence of record, the Board finds that the Veteran's claimed disabilities of right great toe and tibia/fibula disabilities are manifested by numbness, and the Veteran has not provided details as to his symptomology indicating otherwise, and such symptoms have been associated with a presently diagnosed non-service-connected lumbar spine disability. Thus, as the preponderance of the evidence is against a finding that his claimed right great toe and tibia/fibula disabilities are related to service or a service-connected disability, there is no reasonable doubt to be resolved, and the claim for service connection for a right great toe and tibia/fibula disabilities is denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND 4. Entitlement to service connection for a psychiatric disorder. The Veteran asserts that service connection for a psychiatric disorder, to include major depressive disorder, is warranted because it was incurred in service or is otherwise related to service, to include as secondary to his service-connected acne scars. See September 2015 representative's brief. The Veteran's representative, who is a licensed counselor, indicated that the Veteran reported that he was unaware of having his mental illness since his service discharge because he was unaware of the signs and symptoms until he began to receive treatment for these symptoms at the VA. The representative explained that this is common for lay people who do not have experience in the mental health field. She further stated that the Veteran's psychiatric symptoms may also be secondary to his service-connected facial acne scars because such scars are not concealable. As such, the representative contends that a VA examination is warranted to address the etiology of the Veteran's major depressive disorder. The Board finds that the Veteran is entitled to a VA examination/medical opinion, given that there is evidence that the psychiatric disorder may be related to a service-connected disability. The matter is REMANDED for the following action: Schedule the Veteran for a VA psychiatric examination with a qualified examiner to assist in determining the nature and cause of any current psychiatric disorder. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. The examiner should be provided a copy of the below facts. To assist the examiner in rendering the requested opinion, the Board provides the following relevant evidence, with citations to the record, where appropriate: The Veteran served on active duty from January 1986 to January 1990 and from February 1991 to April 1991. The Veteran has alleged that he has a psychiatric disorder that is related to service and/or caused or aggravated by a service-connected disability, which disability is acne scars. The Veteran's service treatment records do not document treatment for or a diagnosis of a psychiatric disorder. The January 1990 and April 1991 Reports of Medical Examination from service discharge from each period of active duty show normal psychiatric evaluations. See VBMS entry with document type, "STR Medical," receipt date 07/22/2014, pp. 17 (January 1990, item 42) & 51 (April 1991, item 42). In the corresponding January 1990 and April 1991 Reports of Medical History from service discharge from each period of active duty, the Veteran denied a history of depression or excessive worry, frequent trouble sleeping, and nervous trouble of any sort. See VBMS entry with document type, "STR Medical," receipt date 07/22/2014, p. 20 (January 1990, item 11, right column) & p. 53 (April 1991, item 11, right column). April 2014 depression and PTSD screens performed by VA medical personnel were documented to be negative. See VBMS entry with document type, "CAPRI," receipt date 07/28/2016, p. 288. In December 2014, the Veteran was seen with complaints of feeling up and down, difficult to motivate, getting mad at little things, sleep difficulty, tired throughout the day, loss of self-esteem, and being unable to hold a job or getting a new one in his professional field. He reported he was concerned about finances and that his house was now in foreclosure status with his wife working to provide family income. A PHQ-9 screen was suggestive of moderate depression. The examiner felt that the Veteran's symptoms met the criteria for dysthymia v. major depressive disorder (MDD). The examiner noted the Veteran was most concerned with sleeping better and finding employment. The examiner noted that current presentation influenced by financial and employment stressors and providing care for his 77-year-old father now living in his home. See VBMS entry with document type, "CAPRI," receipt date 07/28/2016, p. 203-211. A January 2015 VA treatment record shows the Veteran presented with depression, anxiety, restlessness since he was laid off from work. He denied feeling hopeless or helpless. See VBMS entry with document type, "CAPRI," receipt date 07/28/2016, pp. 177-178. A February 2015 VA treatment record shows the Veteran described a number of stresses related to employment search, physical issues, financial stress regarding home and marital consequences of above stress. He reported he had been in a re-training program in order to move toward management rather than physical labor due to his back problems, which required a change in job focus. He also reported his house was in foreclosure but he was in negotiation/mediation regarding this. The Veteran reported his pain was increased in response to psychological stress. See VBMS entry with document type, "CAPRI," receipt date 07/28/2016, pp. 175-176. An October 2015 VA treatment record shows that the Veteran described continuing concerns about employment and was looking forward to participating in VA's compensated work therapy (CWT) program He reported some anxiety about getting a job due to his wife's distress at her job, but he was open to the work therapy program and other possibilities. . See VBMS entry with document type, "CAPRI," receipt date 07/28/2016, pp. 85 86. A December 2015 VA treatment record shows the Veteran reported receiving a job offer for tax preparation and feeling good about it. He described his mood as a roller coaster with occasional difficulty sleeping. He endorsed constant worry about jobs and the future. The examiner noted that the Veteran denied most PTSD symptoms and that the Veteran reported he was in Desert Storm but did not endorse a life-threatening experience there. See VBMS entry with document type, "CAPRI," receipt date 07/28/2016, pp. 54-56. A January 2016 VA treatment record shows that the Veteran reported having anxiety over headaches. He had been taking bupropion and stopped because he was concerned that bupropion was giving him headaches. See VBMS entry with document type, "CAPRI," receipt date 07/28/2016, pp. 31-32. A March 2016 VA treatment record shows the Veteran was assessed with depression with anxiety over headaches. The Veteran was described as being concerned about career outlook and holding a fearful/over-value possibility of negative outcomes. The Veteran stated the lack of good job/career worries contributed to his depression, and he worried he will not be good enough for a new job. See VBMS entry with document type, "CAPRI," receipt date 07/28/2016, p. 19-21. In a September 2015 statement from a licensed counselor, she wrote that the Veteran reported having psychiatric symptoms during service and that he was unaware of having his mental illness since his discharge from service because he was unaware of the signs and symptoms until he began to get treated for these symptoms at the VA. She further stated that the Veteran's psychiatric symptoms may also be secondary to his service-connected facial acne scars because such scars are not concealable. See VBMS entry with document type, "Correspondence" receipt date 09/15/2015. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Based upon a review of the relevant evidence, lay and medical history, and sound medical principles, the VA examiner is asked to answer the following: (1) Identify and diagnose any current psychiatric disorder pursuant to the DSM-5 criteria. (2) Provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current psychiatric disorder is caused by or otherwise related to the Veteran's active service from January 1986 to January 1990 and/or from February 1991 to April 1991. Please state upon what facts and medical principles you base the opinion. (3) If the answer to Question 2 above is negative, is the psychiatric disorder at least as likely as not (a 50 percent probability or greater) caused by the Veteran's service-connected facial acne scarring? Please state upon what facts and medical principles you base the opinion. (4) If the answer to Question 3 above is negative, is the Veteran's psychiatric disorder at least as likely as not (a 50 percent probability or greater) aggravated by his service-connected facial acne scarring? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts and medical principles you base the opinion. (5) If the examiner finds that the service-connected facial acne scarring has caused an increase in severity of the psychiatric disorder that is not due to the natural progress of the disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of increased severity and the current level of disability that shows a baseline for psychiatric disorder prior to the increased severity. If the examiner is unable to establish a baseline prior to the increased severity, he or she should state such and explain why a baseline cannot be determined. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.