Citation Nr: 1635250 Decision Date: 09/08/16 Archive Date: 09/20/16 DOCKET NO. 11-31 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a lumbar spine and sciatic nerve disability, to include as residuals of in-service orchiectomy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran served on active duty with the United States Army from August 1957 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. A Board videoconference hearing was held in September 2013 before the undersigned. The Board remanded this claim for additional evidentiary development in October 2013, July 2014, and most recently in September 2015. The case has now returned to the Board for further appellate action. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. The Virtual VA file contains the September 2013 Board hearing transcript. The remainder of the documents are either duplicative of the evidence in the VBMS electronic claims file or irrelevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's currently diagnosed degenerative disc with degenerative arthritis of the lumbar spine and spinal stenosis with bilateral radiculopathy did not originate in service or until many years thereafter, and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine and sciatic nerve disability, to include diagnosed degenerative disc with degenerative arthritis of the lumbar spine and spinal stenosis with bilateral radiculopathy are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duty to notify was satisfied by letter dated February 2, 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also satisfied its duty to assist the Veteran in the development of his claim. Service treatment records and pertinent post-service VA and private medical records have been obtained and associated with the claims file. The Veteran has also submitted potentially relevant documents and argument in support of his claim, including personal statements and hearing testimony. The Board finds that there is no additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. A VA examination was provided in March 2016. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that it is adequate, as it was based upon a review of the claims file and a thorough examination of the Veteran. Additionally, the opinion provided was supported by sufficient rationale. The Veteran has not alleged any prejudice caused by a deficiency in the examination. Accordingly, there is adequate medical evidence of record to make a determination in this case. Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Law and Analysis The Veteran seeks service connection for a lumbar spine and sciatic nerve disability which he contends had its onset during his military service. He does not contend, and the evidence does not suggest, that his service-connected residuals of an orchiectomy caused or chronically worsened the claimed disorder after service. Rather, he contends that while in service, the surgery resulted in an injury that led directly to the claimed disability. Service connection is granted if it is shown that the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Certain chronic diseases, such as arthritis (degenerative disc/joint disease) are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is 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). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran does not contend that his back disability was necessarily caused by military service itself, but rather believes that an in-service orchiectomy and postoperative complications resulted in residual left leg weakness beginning in service that caused frequent falls. It is these falls that the Veteran contends injured his back, leading to his back arthritis and radiculopathy. In this regard, the Board notes that the Veteran has testified to consistent left leg weakness and giving way since his surgery. While he thinks that there was nerve damage as a result of the in-service surgery, he also alleges that the surgery may have resulted in residual left leg weakness that may have been caused by something other than nerve damage. Service treatment records confirm that the Veteran underwent a left orchiectomy in September 1960; service connection is in effect for chronic bilateral epididymitis, treated by orchiectomy. The service treatment records are silent for any specific lower extremity complaints. In addition, there was no reference to lower extremity weakness at the time of his separation physical in November 1962. Instead, clinical evaluation of his musculoskeletal system and lower extremities was normal. The Veteran was given the opportunity in service to identify any history or symptoms associated with the in-service surgery, but did not report any pertinent complaints and in fact indicated that to the best of his knowledge he was in good health. Also, in the physician's summary of defects and diagnoses section of the report, based on the information provided by the Veteran at that time, the only abnormality highlighted was left testicle removal for epididymitis. There is no indication that the Veteran had a need for medical care due to any acute left lower extremity symptoms within the first post-service year after his separation from service. The post-service evidence shows the Veteran underwent a VA general medical examination in January 1963, within a month of service discharge. However, with the exception of occasional right testicle aching, he denied any pertinent musculoskeletal or neurological history of symptoms, including as to any lower extremity weakness. There were no objective clinical findings documented. The Board has also reviewed the Veteran's November 2009 informal claim for service connection, but notes that he did not list any dates of medical treatment or evaluation for lower extremity problems in the immediate years following service separation. The earliest medical evidence is found in VA outpatient treatment records dated in November 2004, when the Veteran began treatment for leg pain and chronic low back pain. At that time he reported the onset of symptoms as occurring more than 10 years prior. The examiner, referencing an August 2003 clinical record, noted the Veteran's medical history was significant for some evidence of radiculopathy as early as 1981. Radiological findings from August 2004 showed degenerative disc disease, osteoarthritis, and spondylolisthesis at L3-L4. A November 24, 2004 electromyelogram nerve conduction study showed evidence of bilateral peroneal neuropathy. Based on the foregoing, the Board finds that there is insufficient evidence of continuity of lumbar spine or left leg symptomatology to enable an award of service connection solely on this basis under the provisions pertaining to "chronic diseases. See Walker, supra. These treatment records do not suggest that any left leg or low back symptomatology originated during military service and there is no indication that the Veteran related his symptoms to service or to any event of service at that time. Also as diagnoses of degenerative disc disease or arthritis, confirmed by X-ray, were not demonstrated until well after one year following his separation from his period active duty, the Veteran does not satisfy the criteria for service connection for low back disability on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. What remains for consideration is whether or not in the absence of a diagnosis in service, and/or continuity of symptoms, the Veteran's current lumbar spine disability may nonetheless somehow be related to his military service decades earlier. However there is no evidence linking this condition to service. When examined by VA in April 2011, the Veteran reported a history of lower back pain with sciatica since 1980, following surgery for left orchiectomy in 1961. He stated that he began to have symptoms of numbness and tingling affecting the left lower extremity and that he fell twisting his ankle and injuring his back. The diagnosis was degenerative disc disease, osteoarthritis, and spondylolisthesis of L3-L4 lumbar spine with no further discussion regarding etiology. The Veteran submitted a September 2013 medical opinion from a private physician who noted the Veteran's history of left testicular orchiectomy during service. The Veteran related that post surgically he had severe pain at the surgical site that radiated to his left leg and that he later had an episode where his left lower extremity "went dead" and gave out on him. These episodes continued to occur over the years resulting in multiple falls including one in August 1980 where he injured his back. According to the Veteran, an X-ray at that time indicated posttraumatic spondylolisthesis at L2-3 and sacralization of L5. Based on this history, the private physician concluded that the Veteran's current problems and disability were a direct result of complications of the minor procedure performed in the military in 1961. See Medical Opinion from S.G., M.D. dated September 27, 2013. The Veteran was also afforded VA examinations in connection with his claim in February 2014, and February 2015. These examiners reviewed the claims file and diagnosed the Veteran with degenerative disc disease, intervertebral disc syndrome, degenerative arthritis of the spine, and bilateral peroneal neuropathy, which were found not to be connected to active military service. This was based primarily on analysis of the medical evidence that showed a lack of back complaints in the military, upon service separation, and for approximately 18 years thereafter. It was also found that there was no medical nexus establishing causality between the orchiectomy in service and the current lumbar spine and sciatic nerve complaints. It was noted that, anatomically the sciatic nerve is not located in the area of the orchiectomy, but rather extends from the lumbar and sacral plexus, anatomically through the buttocks and into the thighs. The sciatic nerve innervates the muscles of the thighs, lower legs and feet and is not located in the inguinal canal or the abdomen. Unfortunately, the opinions provided by the VA examiners did not adequately address the Veteran's contentions or specifically address the September 2013 medical opinion from the Veteran's private physician. Pursuant to the Board's 2015 remand order, the Veteran underwent a VA examination in December 2015. The examiner interviewed the Veteran, reviewed the claims file, including service treatment records and post-service outpatient treatment reports and summarized the history and findings reflected by these records. On this occasion, the Veteran gave a history of a motor vehicle accident in 1990, and two more recent back injuries after falling off of his roof and later falling on stairs, both of which he attributed to leg weakness secondary to his genitourinary condition. It was also noted that the Veteran was close to 80 years old and had worked at heavy labor occupations throughout his lifetime and admitted to continuing moderately heavy labor in cutting, splitting, and stacking firewood for his home on a yearly basis. After a complete and thorough review of the available medical records, clinical imaging and testing, physical exam, Veteran's given history, and his wife's contribution to his history, the examiner could find no nexus event for the currently diagnosed mild degenerative joint disease, axional demyelinating neuropathy with denervation, and mild to moderate bilateral L1-S1 radiculopathy and military service. In a detailed and comprehensive VA opinion, the examiner explained that based on both the documented evidence in service treatment records regarding the Veteran's surgical interventions and his clinical examination today it would not be anatomically possible to damage the nerves in the legs through the course of an orchiectomy. Documentation regarding surgical treatment for chronic epididymitis shows there were no postoperative complications suffered by the Veteran. In addition, despite the Veteran's reports of intermittent flash-like left leg weakness that caused him to fall from formation, there is no corroborating documentation of the event in service treatment records. The Veteran also had a normal neurological and musculoskeletal exam at separation from active duty in December 1962. Moreover when the Veteran reported for a VA examination in January 1963, there were no complaints recorded of a back condition or leg weakness or chronic pain or numbness. Regarding the September 2013, medical report, the examiner noted that the nexus opinion does not correlate with the documented clinical record during active duty, nor does the reasoning correlate with the Veteran's clinical genitourinary examination. The Veteran reports that the surgeons had to enter his abdominal cavity to correct a complication of his left orchiectomy. Supposing for the sake of argument, the Veteran did have urgent/emergent surgery, a larger area of exposure (i.e. a larger incision) would have been required by the surgical team. This would have resulted in a another surgical scar, in addition to the orchiectomy scar, likely in the left inguinal area to obtain access to the vascular system of the scrotum. The examiner noted that on clinical examination today no such scar exists. Although the Veteran does have loss of his left testicle, the only scarring is a small, well-healed, stable, and asymptomatic linear surgical scar that is barely visible on his left scrotum, consistent with his history of left orchiectomy. This scar is not consistent with the emergent/urgent procedure described by the Veteran as a result of complications from surgery to remove his left testicle. The examiner concluded that, in all fairness, the private physician, likely formed his nexus opinion based on the Veteran's given history of complications due to surgery on his left testicle that caused his back pain. Therefore, the Veteran's degenerative disc with degenerative arthritis of the lumbar spine and spinal stenosis with bilateral radiculopathy is less likely than not (less than 50% probability) incurred on active duty or caused by any treatment for his scrotal pain during active-duty. Based on the evidence in this particular case, the Board finds that service connection for lumbar spine disability is not warranted. The December 2015 VA opinion is the most probative and persuasive medical evidence as it is based upon a complete review of the claims file, sets out the most helpful and complete discussion of the medical questions, and is supported by adequate rationale. The VA examiner considered the Veteran's history of in-service surgery, his beliefs regarding the etiology of his current lumbar spine symptomatology, the relevant history as contained in medical records from service onward, the results of the clinical evaluation, and discussed the Veteran's symptoms in the context of that history. Also, the VA opinion reflects access to the findings and opinion from the Veteran's private treating physician. That notwithstanding, careful consideration has also been given to the opinion of the private medical provider. However, this private opinion, while supportive of the claim, is limited in terms of its ultimate probative value as it is based largely upon the Veteran's description of events which he claims occurred during his military service - events that are not documented, and which VA is not able to confirm through any other means and which the Board, finds not entirely credible. Howell v. Nicholson, 19 Vet. App. 535 (2006); Leshore v. Brown, 8 Vet. App. 406, 409 (1995). For example, the private physician stated that post surgically the Veteran had an episode where his left lower extremity gave out on him, but pointed to no evidence to support that finding. The persuasive value of the favorable opinion is also further weakened as there is no indication that the private physician reviewed any other relevant evidence in the claims file in formulating his opinion. It is true that a review of the claims file, or lack thereof, does not control the probative value of a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). However had the private physician done so, he would have observed that there is no indication that the Veteran had a need for continued or ongoing medical care due to any acute lower extremity symptoms during service or in the immediate years after service including during the VA general medical examination in 1963. The opinion also failed to account for the 18-year gap in the medical record from the time of the Veteran's discharge from service in 1962 until the first documented symptoms in 1980. The examiner also did not address additional contributing factors, such as Veteran's post-service occupational duties, or age-related changes and their significance, if any, to his current disabilities. As a result, the examiner's reliance upon reported history of in-service events decades prior, without evidence or analysis of events at separation or in the years after service, seemingly provides no more than a speculative nexus between service and the post-service development of disc disease and sciatica. The VA medical opinion, by contrast, offers a rationale that refers to the Veteran's actual treatment records, general medical principles, and benefits from the examiner's expertise. This is particularly important, in the Board's judgment, as the 2015 VA examiner's references and specificity make for a more persuasive rationale. After weighing all the evidence, the Board finds greater probative value in the 2015 VA opinion, and, in light of the other evidence of record, this negative nexus opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). The private medical opinion, while not discounted entirely, is entitled to less probative weight in view of the remaining evidentiary record. To the extent the Veteran's statements purport to provide a nexus opinion between his current lumbar spine disability and service, the Board finds his statements are not competent for this purpose. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. Here, the question of whether degenerative changes to the spine are caused by an event or incidents in service is not something that can be determined by mere observation. Nor is this question simple, as it requires clinical testing and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported to determine the cause. As such, the Board finds that the Veteran's statements as to how his lumbar spine disability was caused are not competent evidence as to a nexus. In this case, the weight of the competent and credible evidence establishes that the Veteran's current lumbar spine disability first manifested approximately 18 years after service separation. The fact that his VA examination in 1963 makes no mention of orthopedic or neurological problems, despite identifying the genitourinary symptoms that he believed to be related to service, is persuasive evidence that he was not experiencing continuous symptomatology between service and the eventual diagnosis of radiculopathy in 1980. While not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). As the preponderance of evidence is unfavorable to the claim, the criteria for service connection have not been met and the Veteran's claim is denied. ORDER Entitlement to service connection for a lumbar spine and sciatic nerve disability, to include degenerative disc with degenerative arthritis of the lumbar spine and spinal stenosis with bilateral radiculopathy is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs