Citation Nr: 21027226 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-29 773 DATE: May 5, 2021 ORDER Entitlement to service connection for thoracolumbar spine disability is denied. Entitlement to service connection for disability manifest by joint pain is denied. Entitlement to service connection for disability manifest by low resistance to infection is denied. Entitlement to service connection for respiratory disability (lung problems), to include pulmonary coccidioidomycosis, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for left foot disability, including healed osteomyelitis with residual foot debridement scars is remanded. Entitlement to service connection for disability or disabilities manifest by fatigue, nausea, blurred vision, confusion, headache, and memory loss is remanded. Entitlement to a total disability due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theatre of operations. 2. The Veteran's thoracolumbar spine disability is due to post-service trauma. 3. The Veteran does not have a diagnosed shoulder or knee disorder, does not have functional impairment due to alleged pain, does not exhibit objective indications of a qualifying chronic disability, and does not have an undiagnosed illness associated with these joints due to his service in Southwest Asia. 4. The Veteran does not have a disability manifest by low resistance to infection. 5. Pulmonary coccidioidomycosis is due to post-service soil exposures. To the extent the Veteran has a respiratory disability, it is not due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for thoracolumbar disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for disability manifest by joint pain have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for entitlement to service connection for disability manifest by low resistance to infection have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 4. The criteria for entitlement to service connection for respiratory disability (lung problems), to include pulmonary coccidioidomycosis, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1988 to March 1992. The Board remanded the Veteran's claims in August 2018. 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). For a veteran who had active service in the Southwest Asia theater of operations during the Persian Gulf War (a Persian Gulf veteran), presumptive service connection may be established for a qualifying chronic disability, which specifically includes both an undiagnosed illness and a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome. The disability must become manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021. See 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that "'disability' in [38 U.S.C.] § 1110 refers to the functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment," en route to its conclusion that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." 886 F.3d at 1363, 1368, 1369. However, the Federal Circuit also made clear that a veteran cannot "demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran's pain must amount to a functional impairment." To establish the presence of a disability, pain must reach the level of a functional impairment of earning capacity. Id. at 1367-68. 1. Entitlement to service connection for thoracolumbar spine disability The Veteran contends his back pain is due to an in-service injury, or exposures in Southwest Asia. Specifically, the Veteran contends he was struck by plywood that was thrown threw the air by a low-flying Chinook helicopter. See January 9, 2004 and October 15, 2012 VA treatment records and Statement in Support of Claim for Posttraumatic Stress Disorder received March 19, 2013 (reports receiving treatment at field hospital). The Veteran was not provided an examination for his thoracolumbar spine disability claim. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and a service-connected disease or injury, so as to require medical examination, is low. See McLendon, 20 Vet. App. at 83. "The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon, 20 Vet. App. at 83. Diagnostic imaging confirms degenerative changes of the lumbar spine. See August 23, 2011 VA treatment record. Even if the Board accepted such an in-service injury occurred, the preponderance of the evidence of record is against finding that any thoracolumbar disability may be associated with such an injury or exposures in Southwest Asia. Here there is no credible evidence of a continuity of symptomatology. The Veteran has not reported such a continuity, and he denied a history of recurrent back pain at the time of his separation from service. Clearly, degenerative changes were not noted, diagnosed or manifest during service or within one year of separaqtion. Furthermore, his treatment records show the Veteran believed his back pain may be due to Gulf War syndrome rather than the Chinook incident. See January 9, 2004 VA treatment record ("He is not complaining about any back pain from this injury"). Nevertheless, there is no evidence indicating a relationship between the Veteran's service and a current thoracolumbar spine disability. Rather, the Veteran's reports of back pain began after an October 1998 motor vehicle accident and have continued since. See, e.g., treatment records from October 20, 1998 (accident and back pain) and May 21, 2001 (occasional back pain), and Statement in Support of Claim received March 19, 2013 ("My back problems started with pains in my lower back approximately sometime between 1999 and 2001"). There is no indication in the record that the Veteran's back pain is related service. To the contrary, the preponderance of the evidence supports finding the Veteran's back pain is related to post-service trauma. Accordingly, a VA examination is not warranted, and service connection must be denied. We also note that the record is adequate and establishes a clearly diagnosed disorder rather than an undiagnosed illness. In denying service connection, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for disability manifest by joint pain The Veteran contends he has joint pain, in his shoulders and knees, due to service in Southwest Asia. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). Objective indications of a qualifying chronic disability include both signs and symptoms, in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs and symptoms include, but are not limited to, fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). Here, the Veteran had active service in Saudi Arabia from February 16, 1991 through August 16, 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). However, the Veteran's claimed disability manifest by shoulder and knee pain did not manifest during service in the Southwest Asia theater of operations, or to a degree of 10 percent or more since. Furthermore, as discussed below, the evidence does not show objective indications of a qualifying chronic disability. Accordingly, service connection based on Southwest Asia service is not warranted under 38 C.F.R. § 3.17. A review of the Veteran's service treatment records does not reveal complaint of or treatment for shoulder or knee pain while in Southwest Asia or during service thereafter. A painful right knee cyst and a shoulder cyst were found once in service, but this was prior to Southwest Asia service. See June 21, 1989 and September 25, 1990 service treatment records. The Veteran first reported shoulder pain in October 1998 after being involved in a motor vehicle accident. This appears to have been temporary as it was not reported again. Similarly, in 2003, the Veteran was involved in a motor bike crash and had knee abrasions. See April 1, 2003 (crash was over the weekend; was not using alcohol or heroine at the time). The Veteran's alleged knee and shoulder pain began years after service. For example, when seeking disability benefits from SSA in November 2011, the Veteran complained of psychological and physical impairments, including those of his lower back, neck, and foot, but did not report shoulder or knee pain. But see June 27, 2011 VA treatment record (radiculopathy across knee to lower leg and ankle). Treatment records and a recent VA examination demonstrate the Veteran's alleged pain does not limit motion or otherwise support a rating of 10 percent or more. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5200-03, 5256-63. The Veteran attended VA shoulder and knee examinations in June 2020. The Veteran reported having popping and pain in his shoulders beginning in 2017. He described the pain as 3 of 10, and reported he has not ever sought treatment for his shoulders. The Veteran did not report any functional impairment or loss, and denied having flare-ups. On examination, the Veteran had full range of motion for both shoulders, even after repetitive use. No pain was noted and there was no objective evidence of crepitus. Muscle strength was full, and muscles were without atrophy. Ankylosis was not found and no rotator cuff condition was suspected; nor was shoulder instability, dislocation or labral pathology. Additionally, no clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition was suspected, and the Veteran was not found to have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. The examiner did not render a diagnosis and noted there is no impact on the Veteran's ability to perform any type of occupational task. Similarly, with regard to the Veteran's claimed knee pain, the evidence of record preponderates against finding a current disability. During his June 2020 VA knee examination, the Veteran reported a gradual onset beginning in 2000 with pain at 3 of 10. He also reported that he has never sought treatment for his knee pain, and denied flare-ups, functional impairment and functional loss. The Veteran denied using an assistive device. On examination, the Veteran had full range of motion of both knees, even after repetitive use. No evidence of pain was found and there was no objective evidence of crepitus. Muscle strength was full, and muscles were without atrophy. Ankylosis was not found. Joint stability testing was normal. The examiner noted there was no history of lateral instability, recurrent subluxation or recurrent effusion. There was also no history of a meniscus condition or surgery. The examiner did not make a diagnosis, as there was no objective evidence of a disability, and noted there is no impact on the Veteran's ability to perform any type of occupational task. In light of Saunders and the Veteran's service in the Persian Gulf, service connection is not necessarily precluded because there is no diagnosis, as the Board must also consider the complaints and findings related to the claim to determine whether what the Veteran is experiencing qualifies as an undiagnosed disability. In this case, there is also a dearth of shoulder and knee findings and complaints in VA and private treatment records. As there is no evidence of functional impairment of earning capacity under Saunders or objective indications of a chronic disability under 38 C.F.R. § 3.317, the Veteran is not shown to have a current disability. Without a current disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997). The result is the same under sections 1110, 1131 and 1117. Each law requires the existence of disability. Under sections 1110 and 1131, there is no underlying disease or injury. Under section 1117, the preponderance of the evidence establishes that there is no disability (impairment) despite his reports of pain. Accordingly, the claim is denied. In denying service connection, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for disability manifest by low resistance to infection The Veteran contends he has an undiagnosed illness or medically unexplained chronic multisymptom illness that has led to many issues, including "lung problems" and low resistance to infections. Upon review of the evidence of record, the Board finds the preponderance of the evidence of record is against finding the Veteran has a disability manifest by low resistance to infection. The Veteran has had multiple post-service infections, including pulmonary coccidiomycosis (lungs), methicillin-resistant Staphylococcus aureus (MRSA) osteomyelitis (left foot), and hepatitis C. He contends he has a low resistance to infections due to service in Southwest Asia. However, these infections are diagnosed illnesses given the Veteran's history. Furthermore, the cause of the infections has been established. The circumstances of the Veteran's infections were evaluated as part of a series of June 2020 VA examinations, including an infectious diseases examination. The examiner attributed the Veteran's hepatitis C and MRSA to the Veteran's longstanding intravenous (IV) drug use, and attributed coccidiomycosis to work performed in Arizona. With regard to hepatitis C, the June 2020 examiner noted a January 2018 treatment record in which a clinician suspected the Veteran has a chronic hepatitis C infection that began sometime between 2002 and January 2018, when a positive antibody test was found, because prior hepatitis C antibody screenings were negative in 1999, 2001, and 2002. The Veteran has repeatedly reported heroin use in the years since 2002. Regarding MRSA, this was found in October 2011. A treatment record from that time notes a history of recent IV drug use. See October 31, 2011. For coccidiomycosis, the June 2020 examiner cited a January 2006 treatment record in which a clinician stated the Veteran had tissue diagnosis of coccidioidal nodule(s), but it was unclear when the Veteran underwent his primary infection. The clinician also stated that the Veteran's occupation as a backhoe dirt mover makes it possible he had a multiple arthroconidial exposure from this work activity. See June 15, 2006 VA treatment record (also noting it was asymptomatic). The June 2020 examiner concluded, "The Veteran's IV drug use is more likely than not the cause of his foot infection, septic pulmonary emboli and Hepatitis C and would cause increased risk of other infections because of the risk of using shared needles. The coccidiomycosis infection is due to his occupation. There is no evidence of any unexplained immune compromise." The Veteran has not provided a contrary medical opinion. The Veteran is competent to report experiencing illness and being diagnosed with infections, but he is not competent to determine these are due to a low resistance to infections. This is medically complex, and the Veteran does not have the requisite education. Therefore, the Board finds the medical evidence of record, including the June 2020 examiner's opinions, more probative. Accordingly, service connection for disability manifest by low resistance to infections is denied. The Veteran has not sought service connection for hepatitis C. MRSA with osteomyelitis (foot disability) is addressed in the remand section below. Service connection for a respiratory disability, to include pulmonary coccidiomycosis, is discussed next. 4. Entitlement to service connection for respiratory disability (lung problems), to include pulmonary coccidioidomycosis The Veteran contends he has an undiagnosed illness or medically unexplained chronic multisymptom illness that has led to many issues, including "lung problems". A review of the Veteran's service treatment records does not reveal complaint of or treatment for a respiratory issue. As part of the June 2020 respiratory examination, the Veteran underwent chest x-rays and a pulmonary function test (PFT). The x-rays revealed nodular right upper lung opacity that may represent scarring or possibly pulmonary nodule, and left base atelectasis or scar. The PFT revealed the Veteran had a normal baseline spirometry, normal post-bronchodilator spirometry, and normal flow volume loop. As noted above, the Veteran was diagnosed with coccidioidal nodule(s) in 2006. This post-service lung infection has been attributed to his post-service employment in Arizona. During the June 2020 examination, the Veteran reporting having shortness of breath which began in 2018, but that he has not sought treatment. A review of his treatment records does not reveal complaint of shortness of breath, including during reviews of symptoms that specifically address shortness of breath. Additionally, the June 2020 examiner only identified one respiratory diagnosis, pulmonary coccidioidomycosis, quiescent, and indicated it did not impact the Veteran's ability to work. The examiner opined it was less likely than not due to Southwest Asia exposures, as it was due to soil exposure in Arizona "where the disease is common. He was working as a Backhoe Operator moving soil at the time." See June 2020 respiratory examination report, signed in December 2020. The Veteran is competent to report shortness of breath. The Board will withhold judgement on whether such reporting is credible. Regardless, the Veteran is not competent to determine his reported shortness of breath is due to service. This is medically complex, and the Veteran does not have the requisite education. Therefore, the Board finds the medical evidence of record, including the June 2020 examiner's opinion, more probative. Accordingly, to the extent the Veteran may have a current disability, the preponderance of the evidence of record is against finding it is due to service. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. Upon review of the evidence of record, the Board finds remand is warranted to ensure substantial compliance with our prior remand directives. Consistent with our August 2018 remand directives, the Veteran attended a VA psychiatric examination in April 2020. The examiner diagnosed the Veteran with chronic adjustment order, alcohol use disorder and opioid use disorder. The examiner opined "it is less likely that current diagnoses were incurred in or caused by the military service during service." See April 2020 examination report (emphasis added). The examiner stated, "At the time of this evaluation, the Veteran did not meet criteria for any" other diagnosis. See April 2020 examination report (emphasis added). However, the examiner did not address other diagnoses found in the record or the period prior to the evaluation. Although there is no reasons-or-bases requirement imposed on examiners, examiners must support their conclusions with an analysis that the Board can consider and weigh against contrary opinions. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, the Veteran has provided a medical opinion in support of his claim. Furthermore, the Board's prior remand directives were not followed, as the examiner was directed to list all psychiatric disorders present during the time period of the claim and provide opinions for each. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the examiner diagnosed the Veteran and limited opinions to those diagnoses. The Veteran's medical record contains other psychiatric disorder diagnoses. In March 2017, Dr. H.-H.G. provided a positive nexus opinion with regard to major depressive disorder (MDD). The Board will not rely on this opinion to grant service connection at this time, due to multiple deficiencies. For example, Dr. H.H.-G.'s report does not specify if the MDD diagnosis is based on DSM-5 criteria. See March 2017 report of Dr. H.H.-G. (citing GAF score, which is not consistent with a DSM5 diagnosis); see also 38 C.F.R. § 4.125. Furthermore, Dr. H.H.-G.'s opinion is based in part on the Veteran's self-reporting that raises credibility concerns, e.g. reports of auditory hallucinations which are not found elsewhere in the record. Moreover, the examiner relied on medical literature that does not appear to be applicable to the Veteran, in that it relates to guilt, which the Veteran did not report. In light of the above, the Board finds remand is warranted to schedule a new examination that substantially complies with prior remand directives. Additionally, although there are limits on service-connection related to alcohol and drug abuse, VA law does not preclude a veteran from receiving compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1375-78 (2001). Here the record indicates a relationship between the Veteran's drug use, at times in his life, and his alleged psychiatric disorder(s). See February 6, 2003 VA treatment record (can't stop using heroin due to anxiety); but see September 30, 2002 VA treatment record (Veteran reports cocaine and alcohol use pre-existed service). 2. Entitlement to service connection for left foot disability, including healed osteomyelitis with residual foot debridement scars 3. Entitlement to service connection for disability or disabilities manifest by fatigue, nausea, blurred vision, confusion, headache, and memory loss is remanded. The Veteran contends he sustained an in-service stress fracture in his left foot, that was not treated, and was initially unaware where an infection of his left foot originated. See August 9, 2012 VA treatment record. For the remaining claimed disabilities, the Veteran contends these are related to exposures in Southwest Asia, including a possible undiagnosed illness or medically unexplained chronic multisymptom illness. The evidence of record indicates these all may be symptoms, residuals or otherwise related to an acquired psychiatric disorder or drug use. See VA examination reports received from April through December 2020 (e.g., osteomyelitis is a common complication of IV drug use); see also November 5, 1999 VA treatment record (Veteran reported he was using heroine during car accident and altercation that led to a left eye injury). Furthermore, as noted above, the evidence of record indicates a relationship between the Veteran's drug use at times in his life and his alleged psychiatric disorder(s). Therefore, these claims are inextricably intertwined with the herein remanded claim of entitlement to service connection for a psychiatric disorder. Additionally, the previous VA examiners limited their analysis to Southwest Asia service and did not address the rest of the Veteran's service. Of note, the Veteran's service records reveal a left eye injury. Therefore, an additional opinion that considers direct service connection is warranted. Despite the Veteran's report of a left foot stress fracture in service, this is inconsistent with the record, so an opinion on direct service connection is not warranted. See, e.g., January 1992 report of medical history (Veteran denied history of foot trouble), September 21, 2014 VA treatment record (Veteran reported he saw a private physician the month prior who stated the Veteran had multiple stress fractures in left foot but that they were healing). 4. Entitlement to a total disability due to individual unemployability (TDIU) is remanded. The issue of entitlement to a TDIU is inextricably intertwined with the Veteran's remanded service-connection claims, as he has claimed unemployability as a result of some of the remanded disabilities. Castellano v. Shinseki, 25 Vet. App. 146, 161 (2011). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed acquired psychiatric disorders. The examiner must review the claims file. The examiner must identify all psychiatric disorders the Veteran has or has had during the pendency of the claim. If the examiner determines that a prior diagnosis was erroneous, the examiner should state so and provide an explanation. The examiner is asked to provide a response to the following: a. For each identified psychiatric disorder, opine whether is it at least as likely as not related to service? b. If the examiner believes a disorder preexisted service, provide a response to the following: i. Did the disorder clearly and unmistakably (undebatable) preexist the Veteran's service? ii. If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? iii. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service. c. If the examiner opines an acquired psychiatric disorder is at least as likely as not related to service, respond to the following: i. Identify each alcohol and drug abuse disorder the Veteran has had during the pendency of his claim. For each identified disorder, including opioid use disorder, opine whether it is proximately due to or aggravated by the acquired psychiatric disorder that is related to service. The examiner is remined that aggravation need not be permanent. Provide rationale to support the opinions. 2. Schedule the Veteran for a VA examination for his claimed disability manifest by blurry vision. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, including left eye subconjunctival hemorrhage identified in November 1988? Provide a rationale to support the opinion. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.