Citation Nr: 21040893 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-22 747A DATE: July 7, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a bilateral foot disability is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is denied. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) is denied. FINDINGS OF FACT 1. The most probative evidence is against finding that the Veteran's back, bilateral foot, or psychiatric disabilities were caused or aggravated by his service. 2. He has no adjudicated service-connected disabilities, so necessarily no qualifying disabilities possibly requiring regular A&A. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for a back disability, bilateral foot disability, or acquired psychiatric disorder, including PTSD and depression. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria also are not met for entitlement to SMC, including on the premise of needing regular A&A. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1979 to May 1983. This appeal to the Board of Veterans' Appeals (Board) is from July 2013 and February 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. The Board subsequently, in June 2019, remanded these claims back to the RO for further development and consideration including especially to obtain all outstanding VA and/or private treatment records relevant to these claims and then to have the Veteran examined for needed medical opinions concerning the etiology of these claimed disorders, particularly in terms of whether related or attributable to his military service. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a back disability 2. Entitlement to service connection for a bilateral foot disability 3. Entitlement to service connection for an acquired psychiatric disorder, including PTSD and depression The Veteran contends that he suffers from back, bilateral foot, and psychiatric disabilities including PTSD and depression, because of his service. Following, and because of, the Board's June 2019 remand of these claims, he was afforded VA examinations for medical nexus opinions concerning whether these claimed disabilities are related or attributable to his military service. The Veteran underwent the VA psychiatric examination in December 2019. He reported anxiety, apathy, general discontent, guilt, hopelessness, anhedonia, mood swings, and sadness. He reported a history of stroke, chronic back pain, heart attack, hypertension, coronary artery disease, polysubstance abuse, and smoking. However, he did not identify any specific traumatic event ("stressor") that had occurred during his service; thus, PTSD was not diagnosed since, according to 38 C.F.R. § 3.304(f), this diagnosis is required and must be in accordance with § 4.126(a), meaning in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM). Nevertheless, the examiner diagnosed major depressive disorder (MDD), alcohol use disorder, and cannabis use disorder and indicated these disorders cause occupational and social impairment with reduced reliability and productivity. Those diagnoses, even if not inclusive of PTSD specifically, must be considered and, in fact, is reason the Veteran's claim has been more generally characterized as for an acquired psychiatric disorder inclusive of, but not limited to PTSD, so also for depression (MDD). See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In any event, regarding the more determinative issue of causation, that examiner opined that the Veteran's diagnosed psychiatric disorders were less likely than not caused by caused by his service. The examiner explained that, after reviewing the Veteran's records, his psychiatric disorders were most likely caused instead by his other medical conditions and chronic pain. There was not the required attribution of his mental impairment to anything that had occurred during his military service. In January 2020, the Veteran underwent an examination of his back and feet. He reported flare ups and limited range of motion with heavy lifting. He exhibited a decreased range of motion throughout his lower back with pain observed on each range of motion maneuver. His range of motion was further limited with repeated use over time and during flare ups owing to his pain. The examiner diagnosed lumbar strain. But, again, as concerning the all-important issue of causation, the examiner opined that it was less likely than not the Veteran's diagnosed lumbar strain was related or attributable to his service. After considering the evidence of record, including the Veteran's lay statements and testimony, the examiner explained that the Veteran's service treatment records (STRs) are unremarkable for any symptoms or diagnosis referable to his back while in service. Turning to his feet, the Veteran complained of throbbing pain and tenderness in both feet. He reported flare-ups of both feet that are caused by activity. He complained of pain and tenderness with prolonged walking. He reported undergoing a bone shaving procedure on both of his feet in 1985. Even if true, that was after his military service had concluded in 1983. The examiner diagnosed hallux valgus of both feet. Still again, though, regarding the determinative issue of causation, the examiner first indicated the Veteran's foot condition did not clearly and unmistakably preexist his service. Therefore, she next considered direct service connection (since not required, instead, to consider aggravation of any pre-existing condition). She concluded that the Veteran's bilateral hallux valgus is less likely than not related or attributable to his service. She explained that his STRs do not mention any foot or toe conditions. There are no equally or certainly no more probative (competent and credible) medical nexus opinions refuting that VA examiners' unfavorable conclusions of no correlation between the Veteran's service and his later diagnosed back, bilateral foot, and psychiatric disabilities. The Board has considered his lay statements and pleadings regarding the origin or cause of these disabilities, especially in relation to his service. But, while he is certainly competent to report on his symptoms, he does not have the competence to ascribe his symptoms to a particular diagnosis and provide a probative opinion regarding their etiology, especially in terms of whether related or attributable to his service. This determination is outside the realm of his lay competence since the conditions at issue are medically complex, not instead merely simple. 38 C.F.R. § 3.159(a)(1) and (a)(2). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Thus, the Veteran's claims of entitlement to service connection for these disabilities must be denied. The evidence is not in relative balance (equipoise), so there is no reasonable doubt to resolve in his favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to SMC based on the need for regular A&A Finally, as for this remaining claim for SMC based on the purported need for regular A&A, the facts are not in dispute and this claim fails as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). SMC is warranted when service- connected disabilities impose a specific level of impairment as set forth at 38 C.F.R. § 3.350. Here, though, there are no adjudicated service-connected disabilities, so SMC based on the purported need for regular A&A necessarily must be denied because the Veteran does not have any qualifying disabilities on which to predicate receipt of this benefit. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.