Citation Nr: 1615544 Decision Date: 04/18/16 Archive Date: 04/26/16 DOCKET NO. 13-02 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for diabetes, to include as a result of Agent Orange (herbicide) exposure. 3. Entitlement to service connection for a sciatic nerve disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1970 to January 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of the Department of the Veteran Affairs (VA) Regional Office (RO). In December 2015, the Veteran testified regarding this matter at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran's low back disability is not related to service. 2. The Veteran does not have a current diagnosis of diabetes. 3. The Veteran does not have a current diagnosis of a sciatic nerve disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107, (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a) (2015). 2. The criteria for service connection for diabetes, to include as a result of Agent Orange (herbicide) exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107, (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309(e) (2015). 3. The criteria for service connection for a sciatic nerve disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107, (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated in January 2011. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records have been obtained. The Board also notes that though the Veteran asserted during his December 2015 Board hearing that he received treatment at Beaumont Texas as well as treatment from several other private providers, private treatment records are not associated with the claims file. During his December 2015 Board hearing, the undersigned Veterans Law Judge informed the Veteran and his representative that the record would be left open for 90 days to allow those private treatment records to be associated with the claims file. Neither the Veteran nor his representative submitted such evidence within the 90 day period. No further action is required. 38 C.F.R. § 3.159(c)(ii); see Jones v. Shinseki, 23 Vet. App. 382, 391 (2010) (stating also: "Notwithstanding the duty to assist, it remains the claimant's responsibility to submit evidence to support his claim."); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street."). Also, the Veteran was provided a VA examination of his claimed low back disability in June 2012. This examination and its associated report were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination report was based on examination of the Veteran by the examiner with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, a VA examination was not obtained for the service connection claims for diabetes and a sciatic nerve disability. As discussed below, there is no medical or other competent evidence suggesting a nexus between diabetes and a sciatic nerve disability and service, or any other evidence that would warrant obtaining a medical nexus opinion. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties consisting of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, during the December 2015 Board personal hearing, the VLJ complied with these requirements. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection The Veteran avers service connection for a low back disability, diabetes, and a sciatic nerve disability. Specifically, asserting during his December 2015 Board hearing that he injured his low back fighting a fire in service. Additionally, he had pain down his leg, his diabetes was diagnosed about ten years after service, and he believed his diabetes was caused by Agent Orange exposure while stationed in Korea Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). In addition, certain chronic diseases, such as arthritis, diabetes, and organic diseases of the nervous system, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); see also 67 Fed. Reg. 67792 -67793 (Nov. 7, 2002). Elements of service connection may also be established by showing continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as arthritis, diabetes, and organic diseases of the nervous system. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service. 38 C.F.R. § 3.307(a)(6). Diabetes mellitus is included on the exclusive list of diseases covered by this presumption and accordingly 38 C.F.R. § 3.307(a)(6) may apply to this case. 38 C.F.R. § 3.309(e). VA regulations provide that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). The M21-1 includes a table showing those units (and other personnel) that the Department of Defense has identified as operating in or near the Korean DMZ during the time period when herbicides were used between April 1968 and July 1969. See M21-1MR pt. IV, subpt. ii, ch. 2, sec. C.10.p. In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records reflect a February 1971 record notes the Veteran was seen several times and complained of severe back pain. He was diagnosed with acute back strain. A January 1972 record notes the Veteran complained of low back pain after lifting an object. A February 1972 records notes he fell while fighting a fire and was diagnosed with lumbar muscle strain. An April 1972 record notes he complained of low back pain when he wore his flight suit. Another April 1972 record notes he had chronic lumbosacral strain. An October 1973 record notes he fell and was diagnosed with mechanical back pain. His September 1973 separation examination notes the Veteran's spine was abnormal and he had a lumbar strain in 1972, occasional pain, and was treated with bedrest. An accompanying consultation sheet notes the Veteran had low back pain, mechanical, and was fit for worldwide duty. There was no treatment, complaints, or diagnosis of diabetes or a sciatic nerve disability in service. The Veteran was afforded a VA examination in June 2012. The Veteran reported that over the years his back had gotten worse. He retired from Exon after 35 years in refinery. He complained of back pain and bilateral posterior leg pain. He also reported long standing diabetes. The examiner found muscle strength, reflexes, and sensory examination was normal. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There were no other signs of radiculopathy. Diagnostic testing revealed arthritis in his low back. The Veteran was diagnosed with advanced spondylosis of the lumbar spine and mechanical back pain. The examiner opined that the Veteran's low back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He explained that while the Veteran was seen for his back in service, there was no evidence of a chronic ongoing condition associated with military service. The Veteran's last physical examination in September 1973 found him fit for worldwide duty with a diagnosis of mechanical back pain. Additionally, the Veteran worked for a refinery for 35 years. Based on the evidence, the Veteran's back is not service connected. After a full review of the record in conjunction with the applicable laws and regulations, the Board finds that the claims must be denied. For the claims of entitlement to service connection for diabetes and a sciatic nerve disability, the Board finds there is no indication in the record of the Veteran having a diagnosis of either condition. While the Veteran reported he had a diagnosis of diabetes during his June 2012 VA examination and stated he was diagnosed with diabetes about ten years after service during his December 2015 Board hearing, there is no indication in the record of any diagnosis of diabetes. Moreover, the June 2012 VA examiner found no symptoms or a diagnosis of a sciatic nerve disability. Thus, the evidence of record does not support a finding of current disability of diabetes or a sciatic nerve disability. The presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the claim of entitlement to service connection for a low back disability, initially, as the record does not reflect that the Veteran was diagnosed with arthritis of the low back to a compensable degree within one year of separation from active duty, the presumptive service connection provision of 38 C.F.R. §§ 3.307(a)(3) and 3.309(a) for chronic disabilities are not applicable. The Board finds the most probative evidence as to whether the Veteran's low back disability is related to active duty service to be the June 2012 VA examination opinion. The examiner provided a detailed rationale for the opinion that was clearly based upon a comprehensive and factually accurate review of the record evidence from all sources, to include the Veteran's lay statements and post-service medical records. Indeed, the first complaint of a low back disability after service was not until the Veteran filed his initial claim for VA disability benefits in October 2010, over 36 years after service. Significantly, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weigh against the claim for service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In specific regard to the Veteran's lumbar spine arthritis, continuity of symptomatology under 38 C.F.R. § 3.303(b) is not shown as there is clearly no competent or credible lay or medical evidence of post-service symptomatology. While the Board recognizes the Veteran's assertions that he currently has a low back disability related to service, the Veteran is not competent to make this conclusion. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, musculoskeletal issues, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Musculoskeletal issues require specialized training and medical diagnostic testing for a determination as to diagnosis, and they are not susceptible of lay opinions on etiology. There are many different possible musculoskeletal issues, and a layperson is not competent to diagnose among them or to provide an etiology. Therefore, the Board finds that the Veteran's statements of record cannot be accepted as competent evidence sufficient to establish service connection for a low back disability. In sum, the Board finds the elements of service connection for a low back disability, diabetes, and a sciatic nerve disability have not been met. Accordingly, service connection for the claimed disabilities is not warranted. 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 these claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53. ORDER Service connection for a low back disability is denied. Service connection for diabetes, to include as a result of Agent Orange (herbicide) exposure, is denied. Service connection for a sciatic nerve disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs