Citation Nr: 1334089 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-39 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE 1. Entitlement to service connection for right sciatic nerve impairment, S1-2, diagnosed as sacroiliitis. 2. Entitlement to service connection for left sciatic nerve, S1-2 impairment, diagnosed as sacroiliitis. 3. Entitlement to service connection for a low back condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to May 1981 and from October 1983 to April 1986. He may also have been on some type of duty in August 1981. This matter initially came on appeal before the Board of Veterans' Appeals (Board) from a rating decision of the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for multiple disabilities. On his December 2007 Form 9, however, the Veteran only appealed the three issues listed on the title page above. His claims file is within the jurisdiction of the RO in Roanoke, Virginia. The Board remanded this case in September 2011. Development was accomplished and the matter has been returned to the Board. In October 2013 the Veteran's representative submitted a waiver of RO review of newly submitted evidence, such that the Board will proceed with adjudication. FINDINGS OF FACT 1. The Veteran's right sacroiliac nerve impingement, S1-2, diagnosed as sacroiliitis is not shown to be related to service or to his service-connected right knee degenerative joint disease, nor is it worsened by his service-connected right knee. 2. The Veteran's left sacroiliac nerve impingement, S1-2, diagnosed as sacroiliitis is not shown to be related to service or to his service-connected right knee degenerative joint disease, nor is it worsened by his service-connected right knee. 3. The Veteran's low back disability, diagnosed variously as sacroiliitis and low back strain is not shown to be related to service or to his service-connected right knee degenerative joint disease, nor is it worsened by his service-connected right knee. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right sacroiliac nerve impingement, S1-2, diagnosed as sacroiliitis, to include as secondary to right knee degenerative joint disease are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). 2. The criteria for entitlement to service connection for left sacroiliac nerve impingement, S1-2, diagnosed as sacroiliitis, to include as secondary to right knee degenerative joint disease are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). 3. The criteria for entitlement to service connection for low back disability, diagnosed variously as sacroiliacs and low back strain, to include as secondary to right knee degenerative joint disease are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in October 2005 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain. The case was most recently readjudicated in September 2012. To the extent that any VCAA notice was insufficient, to include that the Veteran was not notified of downstream issues regarding how disability rates and effective dates are determined, there can be no possibility of any prejudice to the Veteran where service connection is denied, and no disability rating or effective date will be assigned. See Dingess/Hartman and Hartman, supra; see also, Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no indication that there is any outstanding available evidence which would have anything to do with the onset of this disorder. The Board notes that the October 2012 VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal. The Veteran was afforded the opportunity to testify before the Board, although he declined to do so. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Pursuant to the September 2011 Board remand, the Veteran was afforded a VA examination in October 2011 and VA treatment records through September 2011 were obtained. As such, there was substantial compliance with the remand directives, and the Board will proceed with adjudication. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. Laws and Regulations As an initial matter, the Board observes that the Veteran does not contend that his sacroiliitis or low back disability are a result of combat activities. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2013). Secondary service connection may also be established for a nonservice-connected disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran's service treatment records show that he experienced back pain in August 1981 after jumping off of a truck. It was noted that the pain was due to strain and he was assigned light duty. In June 1984, the Veteran bruised his right anterior thigh and subsequently, in 1985 he sprained his right medial collateral ligament (MCL). This resulted in some level of right thigh atrophy, which appeared to be temporary. The Veteran filed a claim for VA benefits for other disorders. There was no mention of the disorders at issue in this appeal. VA medical records from 2004 to 2005 show that the Veteran was having problems with low back pain with bilateral sacroiliitis. In 2004 the left sacroiliac asymmetric sclerotic changes were visualized, and lumbar back pain with sacroiliac joint inflammation was assessed. A September 2005 rheumatologic work-up shows that the Veteran was diagnosed with sacroiliitis by magnetic resonance imaging with atypical clinical features. An earlier June 2005 VA rheumatologic work up produced a diagnostic assessment of seronegative spondlyoarthropathy. An August 2007 VA examination showed a diagnosis of degenerative joint disease of the right knee joints, and it was noted that the Veteran had an abnormal gait in that he walked with a limp. In an October 2007 rating decision, the RO granted service connection for degenerative joint disease of the right knee. On his December 2007 Substantive Appeal, the Veteran contended that his current right and left hip and sciatic nerve conditions were secondary to his low back and thigh/hamstring injuries during military service. The Board notes that the Veteran was provided with a VA examination in November 2005, and diagnosed with low back strain and sacroiliitis. Imaging at that time showed L5-S1 disc space narrowing, but otherwise normal lumbar spine. The examiner did not, however, provide any opinion as to whether a nexus existed between service and current low back disability/sacroiliitis. VA treatment records through 2013 show that the Veteran experienced low back pain, radiating to his legs, with impaired mobility, and occasionally used a cane. He reported that his symptoms of low back pain had begun in the 1990s. The Veteran was provided a VA examination in October 2011. The examiner reviewed the Veteran's diagnoses of sacroiliitis in 2005, and sacroiliac joint arthritis in October 2011. The Veteran's service history was reviewed to include falling from the back of a truck and landing on his back in the 1980s, with initial back pain, and experiencing back and hip pain while playing football in the Air Force. He reported experiencing low back pain and bilateral hip pain in the 1990s. Specifically, the Veteran recalled experiencing low back pain in the 1990s when walking to the metro, such that it radiated down his legs, associated with numbness and tingling, and lasted several days. The Veteran reported that his back pain was the same as that experienced in his hips. He reported that he did not experience chronic hip or back pain, but had flare-ups. He described experiencing intermittent sharp pain in his hips once a week, radiating to his scrotum and running medially down the legs to the toes. The pain was described as occurring at times unilaterally, and at other times occurring in both hips, and associated with numbness and tingling in the legs and feet, with burning. The Veteran had been followed by rheumatology since 2004, and diagnosed as having sacroiliitis. The Veteran had been treated with various medications. His employment involved loading baggage onto aircraft; however, during flare-ups he was unable to work. The Veteran reported that during flare-ups he was unable to walk without assistance. Range of motion testing of the lumbar spine revealed limited motion in flexion, extension, right and left lateral rotation and lateral flexion. There was no radiculopathy or other neurologic abnormalities. The Veteran walked with a nonantalgic gait, unassisted. Imaging revealed a normal lumbar spine; however, there were bilateral changes of the sacroiliac joints. Range of motion testing of the hips revealed limited flexion. Imaging of the hips showed that degenerative or traumatic arthritis was not documented. On the other hand, impression was of arthritic changes of both sacroiliac joints. Following examination and claims folder review, the examiner opined that the claimed condition was less likely than not incurred in or caused by service. The examiner discussed the Veteran's right knee ligament sprain from a football injury in service, but noted that X-rays from 2005 were normal for the right knee. The Veteran was not diagnosed with minimal degenerative joint disease of the right knee until VA examination in 2007. The Veteran had been diagnosed with sacroliliitis in 2004. The examiner commented that there was a large gap in time between the Veteran's injuries and the development of sacroiliitis/sacroiliac joint arthritis, which made it very unlikely that either injury caused his current disabilities. In addition, it was not at least as likely as not that the Veteran's sacroiliitis or sacroiliac joint arthritis was aggravated by his right knee disability. The examiner indicated that the right knee ligament sprain was in 1985, and right knee X-rays in 2005 were normal. The Veteran was diagnosed with sacroiliitis in 2004, and degenerative joint disease of the right knee in 2007. The examiner opined that diagnosis of sacroiliitis, sacroiliac joint arthritis was not consistent with a right knee injury that occurred thirty years prior, and would not be aggravated by minimal knee arthritis. The Board acknowledges the Veteran's contentions, cognizant that lay assertions 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.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Although the Veteran is competent to attest to his symptomatology, his competency is distinguished from weight and credibility, which is a factual determination regarding his assertions, and goes to the probative value of the evidence. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see Rucker v. Brown, 10 Vet. App. 67, 74 (1997). After careful review of the entirety of the record, the Board finds that service connection for right and left sciatic nerve impingement, and low back disability to include as secondary to service-connected right knee degenerative joint disease is not warranted. To the extent that the Veteran's statements suggest continuity of symptomatology or a nexus to service, the Board finds that the examiner's opinion is entitled to greater weight given the examiner's medical expertise in providing the reasoned opinion, which considered the Veteran's reported symptomatology. Moreover, the Veteran, when giving pertinent history has noted the onset of back pain in the 1990's, some years after service separation. He did not note any of these complaints on his initial filing for VA benefits in 1995. Particular probative value is given to the October 2011 VA examiner's opinion. That opinion, diagnosed the Veteran's hip and low back disabilities as sacroiliitis/ sacroiliac joint arthritis, indicating it was not caused by or the result of military service, nor was it caused or aggravated by the Veteran's service-connected right knee degenerative joint disease. These conclusions, were arrived at after thorough and comprehensive review of the claims folder containing service and post-service medical records, both private and from VA; the Veteran's actual medical history; and, current examination of the Veteran. See Nieves-Rodrigues v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims folder was reviewed). The examiner's opinion was well-reasoned because it was supported by adequate rationale suggesting not only that there was an extensive gap from the in-service injuries to the diagnoses, but also that such injuries were not consistent with a right knee injury, and would not have been aggravated by such minimal arthritis of the knee. Thus, the Board finds the October 2011 VA doctor's opinion to be persuasive, and notes that this is against the claims. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). Moreover, the clinical history is more consistent with the onset of sacroiliitis, sacroiliac joint arthritis, low back strain, many years post-service. As such, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for right sciatic nerve impingement, diagnosed as sacroiliitis, to include as secondary to right knee degenerative joint disease is denied. Entitlement to service connection for left sciatic nerve impingement, diagnosed as sacroiliitis, to include as secondary to right knee degenerative joint disease is denied. Entitlement to service connection for low back disability, variously diagnosed as sacroiliitis and low back strain, to include as secondary to right knee degenerative joint disease is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs