Citation Nr: 1753669 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-08 448 ) 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. 3. Entitlement to service connection for left leg numbness, to include as secondary to a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to September 1973. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision that, in pertinent part, denied service connection for a low back disability and for left leg numbness. The Veteran timely appealed. In February 2014, the Board remanded the matters to afford the Veteran an opportunity for a hearing. The record reflects that the Veteran failed to appear for a hearing scheduled in June 2014. Under these circumstances the Veteran's request for a hearing is considered withdrawn. See 38 C F R § 20.704(d) (2017). Therefore, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141,146-47 (1999); Stegall v. West 11 Vet. App. 268, 271 (1998). In November 2014, the Board remanded the Veteran's issues on appeal for additional development. The Board finds substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. The Veteran's low back disability is a congenital defect and preexisted his military service. 2. There was no superimposed injury or disease that aggravated or worsened the Veteran's low back disability during his military service. 3. The Veteran's left leg numbness is not related to service or any service connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for establishing entitlement to service connection for left leg numbness, to include as secondary to a low back disability, have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In September 2009, VA notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. 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 evidence that additional records have yet to be requested, or that additional examinations are in order. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As an organic disease of the nervous system is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As an alternative to direct service connection and aggravation, service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a 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. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). Under C.F.R. § 3.304(b), the Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. Only such conditions as are record in examination reports are to be considered as noted. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238 (1994); Hunt v. Derwinski, 1 Vet. App. 292 (1991). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The presumption requires an increase in the severity of the preexisting condition, as distinguished from the mere recurrence of manifestations of the pre-service condition. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Low Back Disability Before addressing the issue of service connection, the evidence of record raises a question as to whether the Veteran had a low back disability which preexisted service. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. See 38 U.S.C. § 1111 (2012). In the Veteran's December 2011 VA examination, the examiner noted that the Veteran has congenital spondylolysis of L5. The examiner further explained that spondylolysis is a congenital condition where there is incomplete fusion in the lumbar spine. This can cause chronic back pain and can occasionally be associated with increased motion at the L5-S1 segment. See December 2011 VA examination, p. 33. As the VA examiner diagnosed the Veteran's low back disability as congenital and therefore present at birth, the Board finds that there is clear and unmistakable evidence that the Veteran's low back disability preexisted his military service. The question now turns to whether the Veteran's low back disability is classified as a congenital "defect" or "disease." VA distinguishes between congenital or developmental "defects" and "diseases" for service connection analysis. A congenital or developmental "defect" is not considered a disease or injury for VA purposes. As such, a hereditary condition that cannot change is a "defect" and is not subject to the presumption of soundness under 38 U.S.C. § 1111. O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009). Nevertheless, if a congenital or developmental defect is subject to a superimposed disease or injury during service, service connection will be granted for any resultant additional disability. VAOPGCPREC 82-90 (July 1990), p. 3. In contrast, the presumption of soundness upon service entry does apply to congenital or developmental "diseases" that are not noted in the service entrance examination. Quirin, 22 Vet. App. at 396. Service connection is allowed for a congenital or developmental disease if it first manifested during service, or if it preexisted service and was aggravated by service. VAOPGCPREC 82-90, p. 2. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural process of the disease. 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent service. 38 C.F.R. § 3.306(b). In a January 2015 VA examination, the examiner classified the Veteran's spondylolysis as a congenital defect, not disease, in the pars interarticularis (a bone connecting one facet joint to another). As the Veteran's low back disability is classified as a congenital defect, the presumption of soundness does not attach to the Veteran's claim for service connection for a low back disability. Therefore, the question is whether there was a superimposed injury or disease to the Veteran's congenital defect during service. The Veteran reportedly had no back problems until an incident in November 1972 when he strained his back lifting a 400 pound panel. Service treatment records, dated in November 1972, include a finding of spondylolysis of the lumbar spine, and reflect referral to the orthopedic clinic. The Veteran then reported having low back pain of three-and-one-half weeks' duration when he did any heavy lifting. An examination in November 1972 revealed severe muscle spasm, and that the Veteran stood with his knees and legs flexed. Records also include a finding of spondylolisthesis of L5 in November 1972. However, with respect to whether these events in service constitute a superimposed injury to the Veteran's current low back disability, the Board finds the Veteran's December 2011 and January 2015 VA examinations highly probative. In the December 2011 VA examination, the examiner opined that the Veteran's spondylolysis was less likely than not due to the Veteran's military service. The examiner noted that, "as far as aggravation, because the natural history of the disease is chronic back pain, and because the problem is congenital, it is not aggravated by military service." See December 2011 VA Examination, p. 34. Furthermore, in the January 2015 VA examination, the examiner opined that "it is less likely as not that any superimposed injury or disease in the service resulted in 'aggravation' of this condition because there is no evidence of continued problems after discharge for many years." See January 2015 VA Examination, p. 2. The examiner reasoned that although the Veteran was seen several times for low back pain in service, the Veteran had no treatment for his back until 2006, over 30 years since the Veteran's discharge from service. Indeed, in his September 1973 separation examination, the Veteran's back was found to be normal, and no complaints of low back pain or a back disability were noted. Both VA examinations also note that the records are silent for over 30 years of documented complaints or treatments to indicate a chronic low back condition. In light of the above discussion, the Board finds that the most probative evidence of record does not show that the Veteran's congenital low back disability did not have a superimposed injury or disease in service, as any problems from the heavy lifting did not result in aggravation or worsening of the condition. As a result, there is no in service incurrence of an injury or event, and without this element cannot be granted. Since the preponderance of the evidence is against the claim, service connection for a low back disability is not warranted. U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Left Leg Numbness The Veteran contends that the numbness in his left leg should be service-connected on either a direct basis or as secondary to his low back disability. With respect to direct service connection, the Veteran has a current diagnosis of peripheral neuropathy in the left leg. Private examinations conducted in March 2007 and April 2007 as well as both a December 2011 and January 2015 VA examination indicate that the Veteran is diagnosed with peripheral neuropathy of the left leg. Thus, he has a current disability. Second, the Board acknowledges evidence of an in-service event, as the Veteran was treated for his left foot several times in November 1972 and February 1973. Thus, there is a possible in service event or injury. However, with regard to a nexus, the record fails to establish a link between the claimed in-service treatment and the Veteran's current left leg numbness. The Board finds that the two negative VA opinions in December 2011 and January 2015 outweigh the Veteran's lay statements of a relationship. First, in the December 2011 VA examination, the physician opined that it was less likely as not (less than 50-50 probability) that the Veteran's peripheral neuropathy is related to his military service. The physician reasoned that while there were in-service complaints, the Veteran did not seek treatment for his peripheral neuropathy until 2006, over 30 years after the Veteran was discharged. The examiner also indicated that alcoholic peripheral neuropathy is a possible cause for the Veteran's disability, as he has a history of severe alcoholism. See December 2011 VA Examination, pp. 14, 34. In addition, in the January 2015 VA examination, the physician opined that the Veteran's peripheral neuropathy was less likely as not (less than 50-50 probability) related to his military service. The physician reasoned that, while service records briefly mention numbness in the feet, there is no history of treatment or further complaints for over 30 years after discharge. The physician noted that possible causes for his peripheral neuropathy are multiple, including alcoholic and nutritional. See January 2015 VA Examination, p. 53. As the December 2011 and January 2015 VA opinions are reasoned opinions that are consistent with the evidence of record, the Board affords them significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The rationale accurately portrayed the evidence and addressed the relevant facts. It is clear that the examiners reviewed the entire claims file and considered the Veteran's contentions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In light of the above discussion, the Board finds that the most probative evidence of record does not show that the Veteran's left leg numbness is related to his military service. Of record are numerous statements by the Veteran that attribute his left leg condition to his active service. The Veteran's statements regarding the cause of his left leg condition are lay statements that purport to provide a nexus opinion. The Board finds the Veteran's statements 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. In the instant case, the question of the cause of a left leg neuropathy is not something that can be determined by mere observation. Nor is this question simple. While the Veteran is competent to report numbness or pain, the question of the cause of that numbness or pain is not an observable fact. It requires clinical testing to assess and diagnose the underlying condition and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported to determine the cause. Therefore, the Board finds that the Veteran's statements as to how his left leg neuropathy was caused are not competent evidence as to a nexus. Additionally, while the Veteran asserts that the numbness in his left leg is chronic, there is no evidence in the record that the Veteran's peripheral neuropathy in the left leg was chronic in service or qualifies as a chronic disability. Therefore, he has not met the criteria for presumptive service connection under 38 C.F.R. § 3.309(a). Accordingly, in the absence of competent evidence of a nexus, service connection on a direct basis is not warranted. Turning now to the elements of secondary service connection, given that the Board does not find that the Veteran's low back disability is related to or aggravated by his military service, service connection for the Veteran's left leg numbness as secondary to the low back is denied. Since the preponderance of the evidence is against the claim, service connection for a left leg disability is not warranted. U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for left leg numbness, to include as secondary to a low back disability, is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs