LUMBOSACRAL STRAIN

VICTORIA MOSHIASHWILI · 2026 · Case ID: A26039270

MIXED

Summary

The veteran, who served in the United States Navy during the Gulf War Era from July 1989 to April 1992, appeals the denial of service connection for hearing loss, vision-related disability, and a right toe injury, and the remand of his major depressive disorder claim. The Board granted service connection for a lumbosacral strain with degenerative arthritis and a cervical strain with spondylosis, finding the veteran's lay testimony regarding persistent pain and stiffness since service established the necessary nexus, despite negative VA examiner opinions that relied on flawed reasoning. The Board also granted service connection for tinnitus, finding the veteran's testimony about gradual onset during service due to noise exposure, coupled with the AOJ's concession of noise exposure and the Board's rejection of the VA examiner's negative opinion, established the nexus. Service connection for hearing loss was denied because the veteran's audiogram results did not meet the criteria for a disability, and the Board found no evidence of a hearing loss disability during or near the appeal period. The vision claim was denied due to a lack of evidence of a current disability or symptoms, and the right toe injury claim was denied as the evidence indicated the injury was caused by a non-service-related event. The major depressive disorder claim was remanded due to a pre-decisional duty to assist error, as the VA examiner's opinion was conclusory and lacked adequate rationale.

Rationale

Favorable findings by AOJ conceded; VA examiner opinions flawed (improper standard, lack of continuity); Veteran's lay testimony regarding persistent symptoms establishes nexus; Benefit of doubt afforded

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210112-131496

Full Decision Text

Citation Nr: A26039270
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 210112-131496
DATE: April 28, 2026

ORDER

Service connection for a lumbosacral strain with degenerative arthritis of the spine is granted.

Service connection for a cervical strain and spondylosis with degenerative changes (claimed as neck) is granted.

Service connection for tinnitus is granted.

Service connection for hearing loss is denied.

Service connection for a vision-related disability is denied.

Service connection for a right toe injury is denied.

REMANDED

Service connection for major depressive disorder (also claimed as anxiety) is remanded.

FINDINGS OF FACT

1. The evidence reflects that the Veteran's currently diagnosed lumbosacral strain, and the observable symptoms of this disability, began during service and have persisted since that time.

2. The evidence reflects that the Veteran's currently diagnosed cervical strain, and the observable symptoms of this disability, began during service and have persisted since that time.

3. The Veteran's currently diagnosed tinnitus was caused by his in-service exposure to hazardous noise because observable symptoms of ringing in the ears began during service and continued since service, thereby establishing a causal link (nexus) between his military service and his current tinnitus disability.

4. The evidence of record fails to establish the existence of a hearing loss disability (that is, hearing loss that is severe enough to be defined as a disability for VA compensation purposes) at any time during or approximate to the pendency of the Veteran's claim.

5. The evidence of record fails to establish the existence of a vision-related disability at any time during or approximate to the pendency of the claim.

6. The evidence of record is against finding the Veteran's diagnosed right toe injury began during service or the first post-service year or is otherwise related to military service.

CONCLUSIONS OF LAW

1. The criteria are met for service connection for a lumbosacral strain. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

2. The criteria are met for service connection for a cervical strain. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

3. The criteria are met for service connection for tinnitus. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

4. The criteria are not met for service connection for hearing loss. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385.

5. The criteria are not met for service connection for a vision-related disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

6. The criteria are not met for service connection for a right toe disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy during Peacetime and the Gulf War Era from July 1989 to April 1992.

In August 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act or AMA), Pub. Law 115-55, which created a new claims and appeals process for pursuing VA benefits. All initial rating decisions issued after February 19, 2019, are promulgated under the AMA. The rating decision on appeal was issued in January 2020 and constitutes an initial decision; therefore, the AMA applies.

In his timely January 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. Although the Veteran elected the hearing docket and notice of the hearing was provided to the Veteran, he did not attend the hearing scheduled for July 22, 2024, nor did he submit evidence within 90 days of the hearing date. See May 2024 Hearing Notice Letter.

If the Veteran would like VA to consider any evidence that
. All initial rating decisions issued after February 19, 2019, are promulgated under the AMA. The rating decision on appeal was issued in January 2020 and constitutes an initial decision; therefore, the AMA applies.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Cook v. McDonough, 36 Vet. App. 175 (2023). However, because the Board is remanding the Veteran's major depressive disorder claim, any evidence the Board could not consider with respect to this issue will be considered by the AOJ on remand. 38 C.F.R. § 3.103(c)(2)(ii).

1. Service connection for a lumbosacral strain with degenerative arthritis of the spine

2. Service connection for a cervical strain with spondylosis with degenerative changes

3. Service connection for tinnitus

4. Service connection for hearing loss

5. Service connection for a vision-related disability

6. Service connection for a right toe injury

The Veteran asserts that the above enumerated disabilities were incurred during active-duty service.

These claims will be addressed together in this opinion because they are closely related and based on the same or similar facts and law.

Legal Criteria

Service connection may be established for a disability that results from personal injury that is suffered, or disease contracted, in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131.

Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be competent evidence of (1) the current existence of the disability for which service connection is being claimed; (2) incurrence of a disease or injury in active service; and (3) a causal link or connection (nexus) between the current disability and the disease or injury incurred in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed Cir. 2004).

Certain chronic diseases (including tinnitus and hearing loss) will be presumed related to service if they (1) were shown as chronic in service; (2) manifested to a compensable degree within a presumptive period following separation from service; or (3) were noted in service, with continuity of symptoms since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); see Fountain v. McDonald, 27 Vet. App. 258 (2015).

Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz (Hz) is 40 decibels or greater; the threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385.

When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for that disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App. at 89. Thus, a claimant who seeks to establish service connection for a current hearing disability must show,
less than 94 percent. 38 C.F.R. § 3.385.

The presence of a disability at any time during the claim process can justify a grant of service connection, even when the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Further, the absence of a specific diagnosis does not preclude service connection. Pain alone, without an identified underlying disease or pathology, may constitute a disability for VA compensation purposes if it produces functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When there is an approximate balance (nearly equal) of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).

Facts

During service the Veteran was an electronic/mechanical equipment repairman. See DD-214. In April 2019, he filed a VA Form 21-0966 Intent to File a Claim for Compensation (ITF), followed by two VA Form 21-526EZ Applications for Disability Compensation and Related Compensation Benefits (Benefits Claims) seeking service connection for anxiety, low back pain, tinnitus, hearing loss, and "neck," "right toe," and "vision" disabilities, See 10/28/2019 and 10/29/2019 Benefits Claims.

In November 2019, the Veteran attended a VA examination to assess his lower back pain claim. The Veteran reported being diagnosed with a lumbosacral strain during service with repeated strains to his back in service from various physical training activities, as well as sleeping on a hard bed during service. No subsequent injuries were reported since that time. The Veteran reported a gradual progression of his back symptoms over the years, including pain radiating through his spine, stiffness, intermittent back spasms, and flare-ups. He reported experiencing flare-ups with weather changes and certain activities. He reported pain (9/10) and loss of motion of his back during flare-ups (pain being the more limiting factor). The Veteran takes naproxen and uses a Tens unit for pain management. He has not had back surgery. His significant other, who was present for the exam, echoed the Veteran's complaints of radiating pain through the back and neck.

The VA examiner diagnosed the Veteran with a lumbosacral strain; degenerative arthritis of the spine. The VA examiner issued a negative causal linkage opinion, because the Veteran had "isolated back strains in service without evidence of chronic back issues during or shortly following exit from service." The VA examiner noted that post-service back complaints began in 2014, "which is long after exit from service thereby negating nexus to service."

The Veteran's Service Treatment Records (STRs) include a lower lumbar strain and follow-up care for pain in October 1991, as well as noting recurrent back pain ("mechanical LBP due to daily activities") during his April 1992 separation examination. A medical record from 2012 reports the Veteran experiencing chronic back pain "8-10/10" persistently for over 10 years; another from 2013
negative causal linkage opinion, because the Veteran had "isolated back strains in service without evidence of chronic back issues during or shortly following exit from service." The VA examiner noted that post-service back complaints began in 2014, "which is long after exit from service thereby negating nexus to service."

The Veteran's Service Treatment Records (STRs) include a lower lumbar strain and follow-up care for pain in October 1991, as well as noting recurrent back pain ("mechanical LBP due to daily activities") during his April 1992 separation examination. A medical record from 2012 reports the Veteran experiencing chronic back pain "8-10/10" persistently for over 10 years; another from 2013 notes chronic back pain since 2003 or prior; and a 2014 medical record reports the Veteran having chronic low back pain for over six months.

In January 2020 the Veteran attended a VA examination to assess his neck condition claim. The Veteran reported that his neck condition began during service. His STRs reveal complaints of a stiff neck in March 1992. A medical record from 2012 reports the Veteran experiencing chronic neck pain "8-10/10" persistently for over 10 years. He reported currently experiencing pain daily, which limits his flexion and extension of his neck. He also reported that he experiences flare-ups that result in acute increase in pain for approximately one hour twice a week. The functional impact of his symptoms require he does things slower.

The VA examiner diagnosed him with a "strain; spondylosis with degenerative changes." The VA examiner issued a negative causal linkage opinion on the basis of the isolated documented in-service event, no neck problems noted on his separation examination, and no complaints for many years port-service.

The Veteran also attended a VA examination in January 2021 to assess his tinnitus and hearing loss claims. The Veteran reported the onset of his tinnitus disability as gradual during his service due to loud noise exposure. The VA examiner diagnosed the Veteran with tinnitus but issued a negative causal linkage opinion based on a lack of decreased hearing and no reports of tinnitus in the Veteran's STRs. The audiogram report reflects his relevant Puretone thresholds, in decibels, as follows:

Ear 500Hz 1000Hz 2000Hz 3000Hz 4000Hz

Right 10 15 20 25 25

Left 10 15 20 25 25

Speech audiometry using the Maryland CNC test revealed speech recognition ability of 100 percent bilaterally.

The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies) but found that while the Veteran may have impaired hearing, it does not meet the criteria to be considered a disability for VA compensation purposes. Further, the Veteran's audiogram results from both entrance into service and separation from service were within normal limits, and no permanent threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for either ear was found. "When the audiograms are compared no significant change or decrease in hearing can be observed."

The Veteran was not afforded a VA examination for either his vision or right toe injury claims. His STRs are silent for any related complaints. The Veterans post-service medical records from February 2005 state that he was seen for a "non-healing puncture wound/callosity at the base of right great toe after stepping on a spiky plastic object in the bathtub 5 months ago, the wound is fluctuant and erythematous and has callosity around it the pain has not subsided." See 02/04/2005 and 02/10/2005 medical notes. Medical records involving any vision issues first appear in January 2020, where the Veteran described changes in his vision over the past year. No further records during the appeal period reference any vision issues. See eye clinic and ophthalmology notes.

In the rating decision on appeal, the AOJ made a number of favorable findings. For the Veteran's back, neck, and mental health claims, the AOJ found a diagnosis of a current lumbosacral strain, cervical strain, major depressive disorder, and found that a qualifying injury or disease occurred during service for each disability. Regarding the Veteran's tinnitus claim, the AOJ found a current diagnosis of tinnitus and that the Veteran was exposed to hazardous noise during his military service. While hazardous noise exposure was found for the Veteran's bilateral hearing loss disability, a disability for VA compensation purposes was not found. The AOJ also found that a right toe disability existed. However, the AOJ made no favorable findings regarding the Veteran's vision claim.

Analysis - Lumbosacral Strain and Cervical Strain

Because
, neck, and mental health claims, the AOJ found a diagnosis of a current lumbosacral strain, cervical strain, major depressive disorder, and found that a qualifying injury or disease occurred during service for each disability. Regarding the Veteran's tinnitus claim, the AOJ found a current diagnosis of tinnitus and that the Veteran was exposed to hazardous noise during his military service. While hazardous noise exposure was found for the Veteran's bilateral hearing loss disability, a disability for VA compensation purposes was not found. The AOJ also found that a right toe disability existed. However, the AOJ made no favorable findings regarding the Veteran's vision claim.

Analysis - Lumbosacral Strain and Cervical Strain

Because the Board has no reason to disturb the favorable findings of the AOJ on appeal, the Veteran's current lumbar and cervical strains and in-service injuries for each, are conceded. Therefore, the crux of the Veteran's appeal is whether a causal link exists between his in-service injuries and his current lumbar and cervical strain disabilities.

Turning to the medical evidence, both the November 2019 (back) and January 2020 (neck) negative causal linkage opinions issued by the VA examiners relied on the assumption of "isolated" in-service events and a lack of evidence of documented back or neck issues until years after service. These opinions are flawed for several reasons. First, the VA examiners imposed an improper standard when opining that a single in-service event cannot cause a chronic condition. Second, by law, a persistence of symptoms since service may be sufficient to establish a causal link (nexus), absent clear and convincing medical evidence to the contrary. A lack of medical evidence is not clear and convincing. See Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012) (Absence of evidence cannot be substantive negative evidence without "a proper foundation... to demonstrate that such silence has a tendency to prove or disprove a relevant fact").

The lay testimony provided by the Veteran during his VA examinations about the persistence of observable symptoms of pain since his injuries during active duty establish a causal link between the Veteran's in-service injuries and his current back and neck disabilities. These statements are competent: that is, the party making them is qualified to report this information because it does not require medical training or expertise to accurately report these observable events. The Board finds no reason to discount the statements. Further, post-service medical records from 2012 note that the Veteran reported experiencing symptoms of these disabilities for over a decade. Affording the Veteran the benefit of any doubt, the Board finds that the final element for direct service connection has been established.

Accordingly, based on a totality of evidence described above, including the probative weight assigned to each piece of evidence, and affording the Veteran the maximum benefit sought, the Board concludes that service connection for both a lumbosacral strain and a cervical strain is warranted. These appeals are granted.

Analysis - Tinnitus

The record appears silent for any complaints, treatment, or diagnoses related to tinnitus during the Veteran's service or within the first post-service year. Thus, there is no basis for awarding service connection on a presumptive basis as a chronic disease. What remains for consideration is whether the Veteran's tinnitus might otherwise be related to service, including any noise exposure therein.

The AOJ made favorable findings that the Veteran has been diagnosed with tinnitus and that the Veteran was exposed to hazardous noise during service. As the Board has no reason to disturb these findings, what remains for consideration is whether there is a causal link between the Veteran's current tinnitus and his conceded noise exposure during service.

Turning to the medical evidence, the January 2020 negative causal linkage opinion issued by the VA examiner relied on no decrease in the Veteran's hearing and no reports of tinnitus in his STRs. Both of these rationales are flawed. First, hearing loss and tinnitus are two separate and distinct disabilities. Hearing loss does not need to be demonstrated in order to award service connection for tinnitus. Second, as discussed above, by law, a persistence of symptoms since service may be sufficient to establish a causal link (nexus), absent clear and convincing medical evidence to the contrary. A lack of medical evidence is not clear and convincing. See Horn, 25 Vet. App. at 239 n.7 (2012).

The lay testimony provided by the Veteran during his VA examination about the onset and persistence of observable tinnitus symptoms that gradually increased beginning in service establishes a causal link between the Veteran's in-service noise exposure and his current tinnitus disability. The Veteran is qualified to report this information because it does not require medical training or expertise to accurately report these observable events. The Board finds no reason to discount the Veteran's competent statements. Affording the Veteran the benefit of any doubt, the Board finds
since service may be sufficient to establish a causal link (nexus), absent clear and convincing medical evidence to the contrary. A lack of medical evidence is not clear and convincing. See Horn, 25 Vet. App. at 239 n.7 (2012).

The lay testimony provided by the Veteran during his VA examination about the onset and persistence of observable tinnitus symptoms that gradually increased beginning in service establishes a causal link between the Veteran's in-service noise exposure and his current tinnitus disability. The Veteran is qualified to report this information because it does not require medical training or expertise to accurately report these observable events. The Board finds no reason to discount the Veteran's competent statements. Affording the Veteran the benefit of any doubt, the Board finds that the final element for direct service connection has been established.

Analysis - Hearing Loss

The record appears silent for any complaints, treatment, or diagnoses related to hearing loss during the Veteran's service or within the first post-service year. Thus, there is no basis for awarding service connection on a presumptive basis as a chronic disease. What remains for consideration is whether the Veteran has hearing loss for VA purposes and, if so, is it otherwise related to service, including any noise exposure therein.

While noise exposure has been conceded by the AOJ, and the Board has no reason to disturb this finding, the Veteran does not have a diagnosis of hearing loss that is severe enough to qualify as a hearing loss disability for VA disability compensation purposes. There are no audiological evaluations at any time during or approximate to the pendency of the Veteran's claim that demonstrate a hearing loss disability, as defined by VA regulations.

Full consideration has been given to the Veteran's claim, and the Board does not doubt the credibility of his reports of observable symptoms of hearing loss. Although excessive noise exposure on active duty is conceded, there must also be a causal link (nexus) between auditory damage on active duty for VA to connect a current hearing loss disability for VA compensation purposes (which is not currently present) to that noise exposure on active duty.

Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the presence of a hearing loss disability for VA purposes, falls outside the realm of common knowledge of a lay person because it requires very specific assessment of hearing loss acuity using audiometric testing. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Although the Veteran is competent and credible to report diminished hearing, he is not competent to report specific results of audiometric and word recognition testing, as required by 38 C.F.R. § 3.385. Further, there is no indication he received any special training or acquired medical expertise in evaluating hearing disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The Veteran's testing results do not indicate that he has a current hearing loss disability. Thus, the Board must find that the medical evidence of record, including audiometric and speech recognition testing, holds the most probative value.

In sum, the evidence does not show that the Veteran has demonstrated a hearing loss disability (as defined for VA disability compensation purposes under 38 C.F.R. § 3.385) at any time during or approximate to the appeal period. Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997) (holding that § 1131 requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998) (applying Degmetich to § 1110); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).

Accordingly, based on a totality of evidence described above, including the probative weight assigned to each piece of evidence, and affording the Veteran the maximum benefit sought, in the absence of such a disability, the appeal for service connection for hearing loss must, by law, be denied.

The Board notes that this decision does not leave the Veteran without recourse. If the Veteran believes that the hearing loss in either ear worsens in the future, the Veteran is free to submit a new claim for service connection (along with new and relevant evidence indicating that his hearing loss has worsened to the point that a hearing loss disability exists), then VA can reassess whether the Veteran's hearing loss has become severe enough or changed in a way that establishes a current disability that would allow the Veteran to potentially qualify for VA disability compensation.

Analysis - Vision-related condition

The Veteran seeks service connection for a "vision" disability but provides no additional information regarding the condition or its onset. The Veteran's claims file is silent for any reference to any complaints, symptoms, or treatment for vision-related issues during service. Most significantly, there is no evidence that the Veteran ever experienced a vision-related condition until reports of vision changes at a routine eye examination in 2020. Thus, the Veteran has not adequately demonstrated that he has the requisite current disability.

As previously mentioned, while a formal diagnosis is not always required to establish a current disability for VA disability compensation purposes, the Veteran has not even contended or otherwise demonstrated that he has a current or former vision-related medical condition or any associated observable symptoms at any time, including during the appeal period.

The Board acknowledges that the Veteran is competent (qualified) to report having experienced an observable current disability or symptoms; however, he has not done so. Further, he would not be qualified to ascribe his symptoms to a particular diagnosis and, in turn, relate this diagnosis to his service. This critical determination is beyond lay competence. See Jandreau, 492 at 1377 n.4 (Fed. Cir. 2007).

The Board notes that VA did not provide the Veteran with a VA examination for the purposes of determining the nature and cause of any vision-related condition. However, the Board finds that VA's duty to assist by obtaining a causal linkage opinion was not triggered, therefore an examination to obtain an opinion was not required.

VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an injury or disease occurred in service (or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies), and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006).

These criteria were not met in this case because the evidence fails to suggest the existence of a current vision-related disability or observable symptoms of such a disability. In the absence of any evidence or even allegations of a current disability or symptoms, the Board finds that the evidentiary threshold for when VA is required to provide an examination has not been met.

Thus, the Veteran has not shown he has a current disability that may be attributed to his military service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (1997). Because there was no vision-related condition of any type during or approximate to the appeal period upon which benefits could be granted, there is no "current disability" and the appeal for service connection for a "vision" disability must, by law, be denied.

The Board notes that this decision does not leave the Veteran without recourse. The Veteran is free to submit a claim for service connection along with new and relevant evidence indicating that a disability exists, so VA can assess whether any vision-related condition has become severe enough or changed in a way that establishes a current disability, that would allow the Veteran to potentially qualify for VA disability compensation.

Analysis - Right toe injury

The Veteran seeks service connection for a "right toe injury" but provides no additional information regarding the condition or its onset. The Veteran's claims file is silent for any reference to any complaints, symptoms, or treatment for right toe issues during service. The AOJ made the favorable finding that the Veteran has a current disability pursuant to treatment for a puncture wound in February 2005, and the Board has no reason to disturb that factual finding. However, the medical reports from that visit specifically state that the Veteran's injury was caused
, so VA can assess whether any vision-related condition has become severe enough or changed in a way that establishes a current disability, that would allow the Veteran to potentially qualify for VA disability compensation.

Analysis - Right toe injury

The Veteran seeks service connection for a "right toe injury" but provides no additional information regarding the condition or its onset. The Veteran's claims file is silent for any reference to any complaints, symptoms, or treatment for right toe issues during service. The AOJ made the favorable finding that the Veteran has a current disability pursuant to treatment for a puncture wound in February 2005, and the Board has no reason to disturb that factual finding. However, the medical reports from that visit specifically state that the Veteran's injury was caused by "stepping on a spiky plastic object in the bathtub 5 months ago."

The Board notes that VA did not provide the Veteran with a VA examination for the purposes of determining the nature and cause of his right toe injury. However, the Board finds that VA's duty to assist by obtaining a causal linkage opinion was not triggered, therefore an examination to obtain an opinion was not required.

The previously discussed McLendon criteria were not met in this case because the evidence specifically refutes that the Veteran's disability occurred during or as a result of military service. In the absence of any evidence or even allegations that the disability is related to the Veteran's active-duty service, the Board finds that the evidentiary threshold for when VA is required to provide an examination has not been met.

Because the weight of the evidence weighs solely against a finding that the Veteran's disability was incurred or otherwise related to service, the appeal for service connection for his right toe disability must, by law, be denied.

The Board notes that this decision does not leave the Veteran without recourse. The Veteran is free to submit a claim for service connection along with new and relevant evidence indicating that his disability had its onset during service that would allow the Veteran to potentially qualify for VA disability compensation.

REASONS FOR REMAND

Service connection for major depressive disorder is remanded

The Veteran reports that his current major depressive disorder is related to his active-duty service.

After a review of the record, the Board determines that a remand is necessary to correct a pre-decisional duty to assist error.

VA's duty to assist includes providing an adequate medical examination and opinion. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303 (2007). In November 2019, the Veteran attended a VA examination to assess his mental health condition. The Veteran described experiencing "bad mood swings," feeling "always angry" and "depressed a lot," and having "a short fuse" which results in yelling or "going to get high." The VA examiner diagnosed the Veteran with major depressive disorder under the DSM-5 diagnostic criteria but issued a negative causal linkage opinion based exclusively on "no continuity."

The Board finds the VA opinion inadequate for adjudication purposes because it is conclusory, without a rationale that the Board can weigh to render an informed decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that "[t]he Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion"); Dalton v. Nicholson, 21 Vet. App. 23 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). A two-word rationale is the epitome of conclusory. Further, this "rationale" implies that an inappropriate or incomplete legal standard was applied by the VA examiner in determining whether a causal link existed if the only factor they evaluates was "continuity" - which is also ambiguous standing alone.

Downstream from the above, the AOJ's reliance on the November 2019 VA opinion in rendering its January 2020 decision equates to a decision denying service connection based on a pre-decisional duty to assist error, as the AOJ failed to develop the record for an adequate medical opinion for service connection for the Veteran's major depressive disorder claim. Therefore, it is necessary to remand the claim to correct this pre-decisional duty to assist error and obtain a new medical opinion and, if necessary, a new medical examination.

The matter is REMANDED for the following actions:

1. The AOJ MUST arrange for a new VA opinion by an appropriate VA clinician (and examination if deemed necessary by the VA clinician) of the Veteran to determine the nature and likely cause of the Veteran's major depressive disorder.

The VA clinician MUST review the entire claims file (including this remand) and note such review was conducted
duty to assist error, as the AOJ failed to develop the record for an adequate medical opinion for service connection for the Veteran's major depressive disorder claim. Therefore, it is necessary to remand the claim to correct this pre-decisional duty to assist error and obtain a new medical opinion and, if necessary, a new medical examination.

The matter is REMANDED for the following actions:

The VA clinician MUST review the entire claims file (including this remand) and note such review was conducted. Based on review of the record, and examination of the Veteran if deemed necessary, the VA clinician MUST provide an opinion with a detailed rationale (explanation) that responds to the following:

(a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disability was either INCURRED IN or otherwise RELATED TO the Veteran's military service? Please explain why.

(b.) In providing this opinion, the VA clinician MUST consider the following evidence pertaining to the onset of the Veteran's major depressive disorder:

(i.) The AOJ made the favorable finding that the evidence shows that a qualifying injury or disease pertaining to the Veteran's major depressive disorder had its onset during the Veteran's service.

(c.) If the answer to (a.) is no, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's major depressive disorder was CAUSED by ANY of his service-connected disabilities?

(d.) If the answer to (c.) is no, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's major depressive disorder was AGGRAVATED by ANY of his service-connected disabilities?

NOTE: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or aggravation as it is to find against causation or aggravation.

The VA clinician is reminded that the Veteran is competent to provide information about observable symptoms and events. The VA clinician should assume, for the purposes of the opinion, that the Veteran's reports are both accurate and credible (unless there is a MEDICAL reason to conclude otherwise, in which case that conclusion must be thoroughly explained; otherwise, by law, it may not be used as evidence).

A DETAILED rationale is required for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. A discussion of the pertinent evidence, including the Veteran's statements, any relevant medical treatises, and generally accepted medical principles, is requested.

If the VA clinician cannot provide an opinion without resorting to speculation, they shall provide a complete explanation stating why this is so. In so doing, the VA clinician shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

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2. Thereafter, the AOJ MUST readjudicate the Veteran's appealed issue in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond.

VICTORIA MOSHIASHWILI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Meadows, Samantha A.

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.

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