Citation Nr: 22008071 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 11-14 380 DATE: February 11, 2022 ORDER Entitlement to service connection for an acquired psychiatric disability is denied. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a left upper extremity neurological disability is granted. REMAND Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for a right upper extremity neurological disability is remanded. Entitlement to service connection for a left lower extremity neurological disability is remanded. Entitlement to service connection for a right lower extremity neurological disability is remanded. Entitlement to service connection for GERD is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. The Veteran's psychiatric disability did not have its onset in service, and is not otherwise related to service. 2. The Veteran's lumbar spine disability did not originate in service, was not manifest within one year of service, and is not otherwise etiologically related to the Veteran's active service. 3. The Veteran's cervical spine disability did not originate in service, was not manifest within one year of service, and is not otherwise etiologically related to the Veteran's active service. 4. The evidence is in equipoise as to whether the Veteran's left upper extremity neurological disability onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a left upper extremity neurological disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1987 until October 1991. These matters come to the Board of Veterans' Appeals on appeal from a March 2010 rating decision of a Department of Veterans' Affairs (VA) regional office (RO). The Veteran participated in a hearing before the undersigned in December 2018; a transcript is associated with the claims file. In May 2019, the Board denied entitlement to service connection for these claims. In November 2020, the Court of Appeals for Veterans Claims (the Court) granted the parties' joint motion for partial remand and vacated the May 2019 decision. In May 2021, the Board remanded the claims for further development with terms consistent with the Court's decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if "the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage v. Gober, 10 Vet. App. 488, 498 (1997). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for a psychiatric disability The Veteran contends he is entitled to service connection for an acquired psychiatric disability. The question for the Board is whether the Veteran has a current psychiatric disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board at the outset concedes that the Veteran has a diagnosis of depressive disorder. Indeed, a VA examination of July 2014 indicates that the Veteran meets the diagnostic criteria for unspecified depressive disorder. Thus, the first Shedden element of service connection is met. Nevertheless, after reviewing the evidence, the Board concludes that the preponderance of the evidence weighs against finding that the Veteran's acquired psychiatric disorder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). There is simply no evidence that may serve as a medical nexus between the Veteran's service and his acquired psychiatric disorder. Service treatment records reflect no complaints, treatment or diagnosis of depression or other psychiatric condition. In fact, the Veteran's separation examination of March 1991 shows that he was psychiatrically evaluated as normal. Furthermore, in an associated report of medical history, the Veteran specifically denied having or ever having had trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. Post-service treatment records do not reflect the Veteran was treated for any acquired psychiatric disability until December 2010, when he complained of feeling depressed and having difficulty adjusting to life after retirement. The Veteran reported a depressed mood for the previous eight months, since the date of his retirement. The Veteran further indicated his depressed mood is also associated with a decline in physical health, and admitted to an increase in his alcohol consumption. The Veteran was diagnosed with adjustment disorder with depressed mood and alcohol abuse, citing phase of life problems. In May 2011, when he underwent a psychiatric evaluation at a VA medical center, he was again diagnosed with alcohol dependence and alcohol-induced mood disorder. Indeed, in a May 2012 VA treatment note, a VA provider noted that the Veteran retired two years prior, and he reported having too much leisure time, which made him feel anxious and depressed. Subsequent VA treatment notes of record are consistent in this regard the Veteran has attributed his depression symptoms to his retirement and physical health decline. The Veteran was afforded a VA examination to determine the etiology of his acquired psychiatric disability in July 2014. The Veteran reported having first begun psychiatric treatment in 2010. He further stated that after retirement, he began drinking alcohol uncontrollably. The Veteran also reported having a depressed mood since 2004 or so. The examiner confirmed the Veteran's diagnosis of unspecified depressive disorder. The examiner opined that the Veteran's depression is less likely than not incurred in or caused by service. In support of this conclusion, the examiner reasoned that the Veteran was neither treated for, nor did he complain of, mental symptoms during active duty. The examiner also noted that the Veteran himself reported having first sought mental health treatment in 2004, over a decade after separation from service. The Board finds the July 2014 VA examination to be highly probative. The examiner conducted a thorough interview with the Veteran and a detailed review of the claims file. None of the Veteran's treating mental health providers have opined that his acquired psychiatric disability is etiologically related to his active duty service. There is simply no evidence, beyond the Veteran's own subjective reports, that his current psychiatric disability is related to his active duty service. The claim thus fails on Shedden element 3, that of a nexus between the Veteran's current depressive disorder and service. At this juncture, the Board notes that it remanded the claim in May 2021 to obtain private post-service treatment records from Dr. R.M. On May 21, 2021, VA sent the Veteran the appropriate VA Form 21-4142 Authorization for Release of Information to obtain these records. A June 2021 report of general information notes that the Veteran called in response to this letter and asked for an extension of time; to date, no authorization has been filed and no documents have been received from Dr. R.M. Unfortunately, the Veteran's failure to supply these releases has frustrated the RO's ability to comply with the Board's remand directives. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (explaining that VA's duty to assist is "not always a one-way street."). The Board acknowledges the Veteran's belief that his current psychiatric disability is related to active service. However, his statements alone do not establish a medical nexus. Indeed, as noted above, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology. See Jandreau, 492 F.3d 1372. As such, as a lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of his depression. The question of causation, in this case, involves complex medical issues that the Veteran is not competent to address. In summary, the criteria for entitlement to service connection for an acquired psychiatric disability, to include depression, have not been met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a lumbar spine disability 3. Entitlement to service connection for a cervical spine disability The Veteran contends that he has lumbar spine and cervical spine disabilities that were directly caused by service. The Board notes that the Veteran is currently diagnosed with multiple back disabilities, to include degenerative changes at T12-L1 and L1-2, cervical strain, and cervical spondylosis. The first Shedden element for these claims is therefore satisfied. The Board additionally concedes the existence of an in-service event, as the Veteran fell off a truck while performing exercises in 1990. He testified during his December 2018 hearing before the undersigned that he fell off the back of a truck with his cooking equipment, and thereafter, his duties were changed from line cook to ration room, where he had mostly administrative tasks to complete. The Veteran testified he sought treatment in service, and in addition to his finger, he hurt his back and neck, for which he was prescribed Tramadol, cream, an ice pack and an electric pack. Thus, the second Shedden element for all claims is satisfied. As such, the remaining question is whether they are linked. A review of the Veteran's service treatment records shows that while the Veteran sustained an injury to his left ring finger after a fall, and underwent treatment for this injury, to include surgery, there is no documented neck or low back injury or complaint in service. The only specific notation of back pain was in a July 1988 note, which contains a physical assessment with no findings, treatment or diagnosis of a back disability. An orthopedic assessment in April 1991 reflects that the Veteran reported having fallen and tried to stop his fall with his hand. It was further reported that the Veteran had therapy for his hand, then surgery and therapy again, with persistent residual problems in his left ring finger. A March 1991 admission note reflects that the Veteran complained of his finger injury, which he reported was sustained during the course of his duties as a cook in January 1990. No lumbar or cervical complaints are otherwise noted in the Veteran's STRs. The Board notes in this regard that in an April 1991 separation report of medical history, the Veteran denied having or having ever had swollen or painful joints, or recurrent back pain. In support of his claim, the Veteran submitted a private medical evaluation dated in December 2009 by Dr. N.V. The Veteran reported continuous back pain which has been worsening, with symptoms including restricted range of motion. Dr. N.V. stated that the Veteran was experiencing pain in the cervical area with stiffness, muscle spasm and limited range of motion. Significantly, the doctor noted that the Veteran had a fall while on active duty, and in which he injured his back in addition to his finger. It was reported that the Veteran fell on his back, which Dr. N.V. stated can cause direct trauma as well as stress in the vertebral column, in turn producing continuous spasm and inflammatory changes, which can then cause degenerative changes. Finally, the doctor opined that it is more probable than not that the Veteran's back and neck disabilities are secondary to his fall in service. Review of VA medical records shows that in August 2001, the Veteran underwent an x-ray of the cervical spine, which was significant for spurs, bridging at C2-3, decreased lordosis, and indentation of the lower vertebrae plate. The Veteran was assessed to have C6 radiculopathy secondary to degenerative spine changes. Significantly, the physician noted, pursuant to the Veteran's reports, that symptoms began when he fell from a military truck in 1989, and that his spondylosis is not usual at his age. In July 2002, the Veteran underwent a cervical MRI, which showed degenerative changes, tiny posterior osteophytes, and some bulging. In May 2006, the Veteran underwent a radiographic scan of his lumbar spine. He was assessed to have degenerative spondylotic changes and muscle spasm. In May 2008, the Veteran again presented to a VAMC for care pursuant to complaints of neck and low back pain. The Veteran also submitted private physical therapy records dated in 2008 in support of his claim. Progress notes indicated that the Veteran reported falling in service and having had intermittent pain in the cervical and lumbar areas since then. The Veteran was noted to have a neck and lumbar strain with degenerative disc disease. The Veteran participated in 2 VA examinations for these claims. The February 2010 VA examination was deemed inadequate by the parties' joint motion and subsequent May 2021 Board decision. It is therefore afforded no probative weight and will not be discussed further. At a September 2021 VA examination for the lumbar spine, the Veteran reported his in-service fall and stated that "one year later he began feeling low back and cervical pain." The examiner additionally noted the Veteran's lay claims of continuity, but opined that the Veteran's lumbar spine and cervical spine disabilities were less likely than not related to service. The examiner noted that aside from the July 1988 reference to pain in his back, there is no other report for any specific spine condition, and that the Veteran was not actually diagnosed with degenerative changes until June 2012about 21 years after separation from service. The examiner explained that the Veteran's degenerative changes are an "aging dependent condition." At the September 2021 VA examination for the cervical spine, the Veteran reiterated his statements of continuity and in-service fall. The examiner, similar to the above, opined that his cervical spine disability was less likely than not related to service. The examiner reasoned that the Veteran's service treatment records and medical records one year after separation are silent for any cervical spine condition. The VA examiner also cited the July 2001 and May 2002 x-rays which documented only mild degenerative changes and concluded that the Veteran's current cervical spine disabilities "dates to recent years, around 10 years after his military service." After reviewing the claims file, the Board finds that the Veteran is not entitled to direct service connection for his lumbar spine or cervical spine disabilities because the legal element of a causal relationship between the Veteran's present disabilities and service is missing. The Board finds the September 2021 VA examinations to be of great probative value as they are well-reasoned and supported by the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In these examinations, after considering the record (to include the Veteran's lay statements of continuity), the examiners stated that the Veteran's service treatment records contained no treatment for a lumbar spine or cervical spine disability and that the Veteran was not actually diagnosed with degenerative changes until June 2012about 21 years after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving a claim, just not the only or sole factor). The Board finds that the only other etiological opinion of record, the private consultant's opinion of December 2009 by Dr. N.V., is not adequate and is attributed minimal probative weight. Dr. N.V.'s evaluation is not shown to be based on a review of the Veteran's medical records, but rather, on his own subjective lay statements. Indeed, Dr. N.V. does not cite any treatment record, medical research or other contemporary evidence. In addition, Dr. N.V.'s etiological opinion is conclusory. While Dr. N.V. offers general information about the risks and possible symptoms associated with a fall, there is no evidence of diagnostic testing and insufficient reference to the Veteran's particular medical history. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Board also considered whether the Veteran is entitled to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309. Here, however, although acknowledging that the Veteran sustained trauma from a fall in service, the Board does not find that any neck or back symptomatology following that in-service accident developed into a chronic disability subject to presumptive service connection. The Board notes that although the Veteran claims that his neck and back disability continued through separation, the earliest objective medical evidence in the claims file is from the July 2001 and May 2002 x-rays diagnosing mild degenerative changeswhich are about 10 years after separation from the military. See Maxson, 230 F.3d, 1333. The Board further finds that the evidence does not show that the Veteran's arthritic changes of the neck and back manifested during service or within one year of his separation from service. Furthermore, even though the Veteran has credibly testified that he has endured significant neck and back pain since service, he is not competent to provide a medical nexus opinion linking his time in service to his current disabilities or determine that these symptoms were manifestations of his current arthritis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, the September 2021 VA examiners considered the Veteran's credible reports of ongoing pain in his neck and back and nevertheless reached the conclusion that these disabilities are less likely than not related to service. Consequently, the Board gives more probative weight to the September 2021 VA examinations and post-service treatment records indicating that the Veteran's arthritis was actually first manifested and diagnosed years after service separation. In sum, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claims for cervical spine and lumbar spine disabilities on a direct or presumptive basis. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claims must be denied. 38 U.S.C. § 5107(b). 4. Entitlement to service connection for a left upper extremity neurological disability The Veteran contends that he has a left upper extremity neurological disability related to service. The Board agrees. The Veteran's September 2021 VA examiner diagnosed the Veteran with left ulnar neuritis. The first Shedden element is therefore satisfied. Regarding the second Shedden element, the Board references the above discussion regarding his in-service fall. The Board brings particular attention to the fact that the Veteran needed to have surgery on his left hand twice. The Veteran's February 2010 VA examination was deemed inadequate by the May 2021 Board decision; it will therefore not be discussed further and is afforded no probative weight. While the Veteran underwent extensive sensory testing at a February 2015 VA examination, no underlying etiological opinion was provided. It is therefore afforded limited probative weight in this regard. The September 2021 VA examiner opined that the Veteran's left ulnar neuritis onset in service and did not resolve. The examiner reasoned that the Veteran's left ulnar neuritis, "which is seen to have existed while in the Army related to the injury to his left hand ring finger which required surgery . . . the left ulnar nerve was at least as likely as not injured since then and there is a note . . . showing tingling of the left ring finger upon palpation." Based on the above, the Board finds that the evidence is at least in equipoise with regard to whether his left upper extremity neurological disability is related to service. The Board affords probative weight to the September 2021 VA examiner's opinion as it is well-reasoned and based on a review of the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The September 2021 VA examiner's opinion is also consistent with the credible factual observations of the Veteran as he noticed his left upper extremity neurological symptoms beginning in service after his fall and continuing thereafter. See Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses). In conclusion, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's left upper extremity neurological disability is related to service. Accordingly, and resolving all doubt in favor of the Veteran, the Board finds that service connection for this claim is warranted. 38 U.S.C. § 5107. The nature and extent of this disability is not before the Board at this time. REASONS FOR REMAND 1. Entitlement to service connection for a headache disability is remanded. Unfortunately, remand is necessary to comply with the Board's May 2021 directives. The May 2021 Board decision directed the VA examiner to opine whether it is at least as likely as not that the Veteran's headache disability onset in service, within a year of service, or is otherwise related to service. The Board asked the VA examiner to discuss the Veteran's lay statements of continuity as well as the December 2009 private etiological opinion. However, the September 2021 VA examiner did not do so. Instead, the VA examiner commented that the Veteran's headache condition "can be seen on patient with neck spasm or cervical spine condition." No direct service connection opinion was provided. As such, remand is necessary to obtain one. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for a right upper extremity neurological disability is remanded. 3. Entitlement to service connection for a left lower extremity neurological disability is remanded. 4. Entitlement to service connection for a right lower extremity neurological disability is remanded. Unfortunately, remand is necessary to comply with the Board's May 2021 directives. Importantly, at this stage, the Board has already conceded that the Veteran has satisfied the first Shedden element, as his right upper and bilateral lower extremity neurological manifestations impact his earning capacity per Wait v. Wilkie, 2020 US. App. Vet. Claims LEXIS 1609 (Aug. 26, 2020). The remaining question, therefore, is whether these manifestations are related to service, to include his in-service fall. The May 2021 Board decision directed the VA examiner to clarify the Veteran's right upper and bilateral lower extremity neurological disabilities. Furthermore, in the event the Veteran was not diagnosed with a specific neurological disability, the examiner was still instructed to opine whether these manifestations onset in service, within a year of service, or are otherwise related to service. The September 2021 VA examiner opined that the Veteran was not diagnosed with any right upper or bilateral lower neurological disability and that they were less likely than not related to service as "no neurological lower extremity condition was seen identified or diagnosed while in the service." First, the Board finds this opinion in violation of Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), which held that the lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim. Secondly, the Board finds this medical explanation a bit circular and in conflict with the crux of Wait, supra. While it is true that the Veteran is not currently diagnosed with a right upper or bilateral lower extremity neurological disability, or was diagnosed for such in service, the question remains whether these present neurological manifestations (which have already been deemed to affect earning capacity) are related to service, to include his in-service fall. For these reasons, remand is necessary. 5. Entitlement to service connection for GERD 6. Entitlement to service connection for erectile dysfunction Unfortunately, remand is necessary to obtain an addendum VA medical opinion. The relevant question here is whether the Veteran's GERD or erectile dysfunction are caused or aggravated by any of the medications he has taken for service-connected disabilities during the pendency of this appeal. At an August 2021 VA examination, the VA examiner opined, in part, that the Veteran's GERD and erectile dysfunction were less likely than not caused or aggravated by any service-connected disability, to include medications taken therefor. The VA examiner reasoned that the Veteran denied currently taking any medications for his service-connected conditions. As such, the examiner concluded that they cannot cause or aggravate his GERD or erectile dysfunction either. However, remand is necessary to obtain a retrospective opinion regarding whether any of the medications taken at any point during the pendency of this appeal for service-connected conditions caused or aggravated his GERD or erectile dysfunction. The Board notes that the Veteran, at some point during the pendency of this appeal, took pain medication for his service-connected left upper extremity neuropathy and left wrist, hand, and finger disabilities. These matters are REMANDED for the following action: Obtain addendum VA medical opinions regarding the nature and etiology of the Veteran's headache, GERD, erectile dysfunction, right upper extremity and bilateral lower extremity disabilities. The need for another VA examination (or telehealth interview, review of the record, or similar if an in-person examination is not feasible) is left to the discretion of the reviewing examiner. The entire claims folder, to include a copy of this remand and the November 2020 joint motion, must be reviewed. The VA examiner must provide separate, well-reasoned responses to each of the following: (a) Headaches is it at least as likely as not that the Veteran's headache disability onset in service, within a year of service, or is otherwise related to service? The examiner must review and discuss the Veteran's lay statements regarding the origin of the disability and continuity of symptomatology since service. The VA examiner must also discuss the December 2009 private opinion from Dr. N.V. (b) Neurological Disability of the Right Upper Extremity and Bilateral Lower Extremities is it at least as likely as not that these disabilities onset in service, within one year of service, or are otherwise related to service. The examiner is advised that a current disability, has been found to be presentregardless of whether or not he is currently diagnosed with a formal disabilityas the Veteran presented evidence that his right upper and bilateral lower extremity neurological manifestations impact his earning capacity. The reviewing examiner must review, discuss, and comment on the Veteran's lay statements regarding the origin of this disability, to specifically include his August 2014 notice of disagreement. In light of Wait, an explanation that focuses solely on the lack of in-service treatment for a non-diagnosed formal disability will not be accepted. (c) GERD is it at least as likely as not that the Veteran's GERD is caused or aggravated by the Veteran's service-connected disabilities, to include medications taken therefor? (d) Erectile Dysfunction - is it at least as likely as not that the Veteran's erectile dysfunction is caused or aggravated by the Veteran's service-connected disabilities, to include medications taken therefor? In answering (c) and (d), the examiner is advised that the Veteran is currently service connected for a left-hand disability, left ring finger disability, left wrist disability, and left upper extremity disability. The examiner must list all medications taken for these service-connected disabilities during the pendency of the appeal period, which began in 2010. The examiner must render an opinion regarding whether any such medications caused or aggravated the Veteran's GERD or erectile dysfunction, regardless if he is currently taking them. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.