Citation Nr: 1753394 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-08 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a nerve condition of the right lower extremity, to include as secondary to a low back disability. 3. Entitlement to service connection for a nerve condition of the left lower extremity, to include as secondary to a low back disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1951 to May 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge in March 2015. The Board remanded the claims in June 2015 for further development. Additional evidence has been received subsequent to the August 2016 supplemental statement of the case (SSOC), including a VA medical opinion dated June 2017. However, the Board finds the additional evidence is not related to the bilateral lower extremity claims being denied herein. Thus, a remand for a supplemental statement of the case is not necessary for the two lower extremity claims. See 38 C.F.R. § 20.1304(c). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). FINDINGS OF FACT 1. The Veteran's low back disability is related to service. 2. The Veteran does not have a current nerve disorder of the right or left lower extremities. CONCLUSIONS OF LAW 1. The criteria to establish service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria to establish service connection for a nerve disorder of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria to establish service connection for a nerve disorder of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Pertinent to a service connection claim, such a determination requires a finding of a current disability as one of the elements. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Low Back Disability The Veteran contends that his current back disorder had its onset during service, including injuries he sustained in service. During service, the Veteran reported back pain in September 1952 and myositis was indicated. The Veteran was also involved in a motor vehicle accident (MVA) in 1952. However, the Veteran's May 1954 separation examination indicated a normal spine examination. Following service, the Veteran filed an April 2013 claim in which he indicated that his back disorder is related to his military occupational specialty (MOS) as a combat infantryman/mortarman, with service in the Korean War. He contends he injured his back carrying a heavy ruck sack with equipment, including base plates and mortar tubes/tripod. He stated he constantly was bending and twisting at the waist. He noted he also had to jump from helicopters from approximately four feet and from high vehicles. The Veteran was afforded a March 2015 Board hearing in which he testified that he suffered a 1952 roll over MVA during service which may have been the onset of his current back disorder. He indicated that he also recalled slipping and falling during service, injuring his back, and that he only received pain pills to treat the pain. He stated that he would simply live with the pain which worsened over time. The claim came before the Board in June 2015 and was remanded to afford the Veteran a VA examination to determine the nature and etiology of his back disorder. He was afforded an October 2015 VA examination in which the examiner diagnosed him with lumbosacral strain and degenerative arthritis of the spine. The October 2015 x-rays of the lumbar spine revealed moderate scoliosis with marked multilevel discogenic degenerative disease. The Veteran reported to the examiner that he hurt his back during service passing ammunition and the pain continued to bother him so his duties were changed to forward observer. He indicated that he has a high pain tolerance and dealt with the pain for many years. The October 2015 VA examiner concluded the Veteran's back disorder is not related to service. He stated there is insufficient documentation in the Veteran's records to confirm a service related condition at this time. He noted, therefore, the Veteran has a diagnosis of a lower back disability that is less likely as not incurred in or caused during service. A July 2016 addendum VA opinion was also received from the examiner which indicated the Veteran's spinal arthritis less likely than not had its onset within one year of his discharge from service. He stated radiographs from the additional medical records revealed moderate diffuse disc space narrowing throughout the thoracic and upper lumbar spine with osteophytes present in the mid and lower thoracic spine. He noted there are no medical records or diagnostic testing in support of arthritis occurring within a year of discharge from service and thus, it is unlikely to have occurred. In contrast, a positive June 2017 nexus opinion from a VA orthopedic surgeon was submitted. The physician opined the Veteran has multilevel spinal stenosis with severe back pain and cannot stand more than five minutes. He noted an MRI shows multilevel spinal stenosis and scoliosis and while this may include some degenerative scoliosis, the curvature is more proximal and has a sharper curve (though mild in magnitude). The physician went on to opine that it is hard for him to know with certainty if the Veteran's injury in Korea is the cause of all of his current back pain; however, the proximal curvature is consistent with an old injury. He noted the Veteran's reports of "carrying a heavy ordinance and twisting his back and then falling and then having severe pain." The examiner concluded it is at least as likely as not that he sustained a compression or "stable" fracture from this injury which has then led to the sequelae seen now. He stated given the Veteran's reports and the onset of his symptoms, it is more likely than not that the injury in Korea at least exacerbated/accelerated the natural history of his symptoms. He noted, however, age is clearly a contributory factor. The Board finds the June 2017 physician's opinion in favor of the Veteran's service connection claim persuasive. The physician provided adequate rationale in determining that the Veteran's degenerative arthritis of the spine had its onset during his service. The opinion was predicated on a thorough review of the evidence, including the Veteran's service treatment records and lay evidence, as well as the VA examination report. His opinion contains clear conclusions with supporting data and reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As noted, the Veteran was provided with an October 2015 VA examination. The VA examiner concluded there is insufficient documentation in the Veteran's records to confirm a service related condition. He noted, therefore, the Veteran has a diagnosis of a lower back disability that is less likely as not incurred in or caused during service. In comparing the conflicting spine opinions, the Board finds the June 2017 physician's opinion to be more persuasive with respect to the nexus element necessary to establish service connection. This is based on the June 2017 physician's well-reasoned explanations and supporting rationales. At the least, the question regarding nexus is in equipoise. Therefore, any reasonable doubt must be resolved in the Veteran's favor, and the Board finds that the evidence shows that his current low back disability is related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for degenerative arthritis of the lumbar spine. Lower Extremity Nerve Conditions The Veteran contends he suffers from bilateral lower extremity disorders related to his current back disability. During the Veteran's March 2015 Board hearing, he indicated he experiences radiating pain and numbness from his back to his lower extremities, which includes burning and aching. The Board remanded the claims in June 2016 for further development, including whether any diagnosed nerve condition of the lower extremities is related to a low back disability. The Veteran was afforded an October 2015 VA examination in which the examiner indicated the Veteran does not have a diagnosed nerve condition or peripheral neuropathy. He noted the Veteran has no symptoms attributable to any nerve conditions. He stated although the Veteran is claiming a bilateral lower extremity nerve condition, there is no objective evidence of a bilateral lower extremity condition on examination or in the medical records. Therefore, he concluded, a clinical diagnosis of a bilateral lower extremity nerve condition could not be endorsed. As noted above, a June 2017 VA opinion was received thereafter. However, the opinion did not discuss the Veteran's lower extremities. Further, although the Veteran received treatment with the Reno VA Medical Center, there is no diagnosis, treatment, or indication of a lower extremity nerve condition in those records. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for bilateral lower extremity nerve conditions. There is no current disability of a lower extremity nerve condition. As such, the first element of service connection, establishing a current disability, fails and the preponderance of the evidence shows that he does not currently suffer bilateral lower extremity nerve conditions. The Board acknowledges that the Veteran has asserted that he does in fact have bilateral lower extremity nerve conditions related to his lower back disability. However, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of a lower extremity nerve condition is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the presence of such disorder involves an internal and complex diagnosis which requires specialized medical knowledge and training which the Veteran has not exhibited. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Accordingly, the October 2015 VA examination report is afforded more probative weight than the Veteran's and his representative's lay statements. Additionally, the Board notes there are no contrary medical opinions establishing a lower extremity nerve diagnosis. In consideration of the evidence, the Board finds bilateral lower extremity nerve conditions have not been shown during the appeal period. The preponderance of the evidence is against the claims because the current disability element for service connection is not met. Without a current disability, the service connection claims are not substantiated. See Brammer, 3 Vet. App. at 225. Therefore, there is no doubt to be resolved, and service connection is not warranted for bilateral lower extremity nerve disorders. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that in evaluating spine disabilities, associated objective neurologic abnormalities are also to be evaluated. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note 1. Should such objective neurologic abnormalities of the lower extremities arise in the future that are associated with the Veteran's now service-connected degenerative arthritis of the lumbar spine, he may file a claim for increase in that regard. ORDER Service connection for degenerative arthritis of the lumbar spine is granted. Service connection for a nerve condition of the right lower extremity is denied. Service connection for a nerve condition of the left lower extremity is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs