Citation Nr: 1754624 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 12-10 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for generalized arthritis of the joints. 3. Entitlement to service connection for liver disease, to include hepatitis C. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to April 1968. This appeal is before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In November 2014, the Board remanded the Veteran's appeal with instruction to provide the Veteran with VA examinations. Such examinations occurred in October 2016. The Board is therefore satisfied that the instructions in its November 2014 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). In a July 2017 evidence submission, the Veteran's representative offered argument and evidence relevant to the issue of entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). Because there is no increased rating claim that has been appealed, however, a TDIU is not considered part and parcel of the determination and is therefore outside the scope of this decision. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). FINDINGS OF FACT 1. A low back disability is not related to service and did not manifest within one year of separation. 2. Generalized arthritis of the joints is not related to service and did not manifest within one year of separation. 3. Liver disease is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for generalized arthritis of the joints have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for liver disease, to include hepatitis C, have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran's representative has argued that his VA examinations were inadequate; these arguments are addressed in the analysis below. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). There is thus no prejudice to the Veteran in deciding this appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When determining service connection, a presumption of soundness ordinarily applies. 38 C.F.R. § 3.304(b). Pursuant to such presumption, a 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 thereto and was not aggravated by such service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153; Wagner, 370 F.3d at 1096. For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). No compensation shall be paid if a disability is the result of a veteran's own willful misconduct, including the abuse of alcohol. See 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301; see also VAOPGPREC 2-97. The law precludes compensation for primary alcohol abuse disabilities, and secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Alcohol abuse is defined as the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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. § 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. Low Back The Veteran seeks service connection for a low back disability. Service treatment records indicate that in the report of medical history accompanying the Veteran's March 1968 separation examination, he reported recurring back pain since having strained his back one year prior. No abnormality was noted on examination. VA treatment records reflect that in January 1999 the Veteran reported back pain while being treated for substance abuse. In January 2001 he stated that his back hurt. Specifically, he reported cervical and thoracic pain for four days. He stated that he had a previous similar episode one year prior. He was diagnosed with cervical radiculopathy. In December 2007, he reported chronic back pain for 25 years with a history of injury while lifting something while working in an automobile company. In his February 2010 claim, the Veteran reported back problems that began in 1990, with treatment beginning in 1995. VA treatment records reflect that in April 2011 the Veteran reported low back pain at an emergency room visit. He reported a history of chronic back pain for 30 years with the current exacerbation starting six months prior. He received medication but in June 2011 reported that they were not helping. He was diagnosed with chronic back pain likely due to degenerative joint disease. X-rays confirmed degenerative changes with probable spinal stenosis. In July 2011 he reported that he had had back pain for 47 years since he lifted something heavy as a teenager. In August 2011 he attended a physical therapy consultation but failed to report to his subsequent scheduled sessions. He reported back pain again in November 2011. He reported back pain in April 2013 that had worsened since a December 2012 car accident. He was referred for physical therapy. In June 2013 he sought a change in medication for his low back pain. In a June 2014 statement, the Veteran's representative argued that his current low back disability was related to the strain he reported upon separation from service. At his June 2014 hearing, the Veteran reported that he currently was diagnosed with arthritis, herniated disc, and deterioration of the discs of the spine. He stated that when in service he thought he had a pulled muscle in his back from general military activities. He stated that he continued to have pain after service, and was treated by VA in 1968 or 1969. VA treatment records reflect that in October 2014, the Veteran reported lower back pain. He stated that his medication did not help, but he did not want any medication or physical therapy at this time. In May 2016, he reported chronic back pain for 30-40 years. In a July 2016 claim for a nonservice-connected pension, the Veteran reported that his spinal cord injury began in 1969. The Veteran underwent a VA examination in October 2016. He reported developing low back pain around 40 years ago when he helped his brother lift a bumper from a car. Since that time he reports he has had intermittent back pain, which began to worsen 20 years ago. He was diagnosed with degenerative arthritis of the spine, lumbosacral degenerative disc disease, intervertebral disc syndrome, and spinal stenosis. The examiner opined that it was less likely than not that the Veteran's current disability was incurred in or caused by an in-service injury, event, or illness. This opinion was based on the rationale that medical records are silent for a low back condition for more than 38 years since the Veteran's discharge, during which time he was involved in heavy duty construction and home improvement work. In a November 2016 statement, the Veteran's representative stated that the October 2016 VA examiner erred in stating that there was no evidence within the Veteran's service record to suggest that the Veteran had back issues. The Veteran submitted a June 2017 opinion from a private physician who reviewed the claims file and spoke with the Veteran. The Veteran reported to the physician that he fell down some steps in basic training and landed on his low back. He further stated that he jumped off a truck during training and landed on his back again. After the military, he said he was seen by a doctor who gave him injections in 1968 and 1969. He could not remember the name of the hospital where he received these injections. He reported persistent back problems since that time, and was treated with physical therapy several times in the 1960s and 1970s. He further reported that he injured himself in a fall in approximately 2008 and was in a motor vehicle accident in approximately 2013. The physician did not review treatment records with respect to these injuries. The Veteran reported that his back was no worse after either of these injuries. The physician opined that it was at least as likely as not that the reported in-service fall caused the Veteran's current back disability. This opinion was based on the rationale that the Veteran reported consistent back pain since service and his lumbar scan was consistent with a traumatic injury. Additionally, in June 2017 the Veteran's representative states that because no abnormality was noted when the Veteran was inducted into service, he must be presumed sound, and is therefore entitled to service connection for the back pain he reported upon separation. As an initial matter, the Board addresses the contentions of the Veteran's representative that the Veteran is presumed sound upon induction to service. The Board agrees that the Veteran should be presumed sound upon entry into service. The only evidence of a back injury prior to service is the Veteran's July 2011 report to his treating physician that his back had hurt ever since he lifted something as a teenager, and possibly his report in his October 2016 that his low back pain developed 40 years ago when lifting something with his brother. This, by itself, is insufficient for the purpose of meeting the standard for clear and unmistakable evidence that a disability existed prior to service. Indeed, no back injury was noted upon induction into service. As such, the Board will consider any back pain reported in service to be unrelated to any chronic disability sustained prior to service. While the Board disregards the statements of any pre-service event so far as they establish a pre-existing disability, their lack of consistency with other statements will still be considered in the credibility analysis below. The Board finds that the evidence weighs against a finding that a current low back disability is related to service or manifested within one year of separation from service. While the Veteran self-reported a back strain and arthritis at his March 1968 separation examination, there is no evidence of treatment for such in his service treatment records. Thus, the June 2017 private opinion relies not on documented incidents and treatment but almost entirely on the Veteran's reports to the physician. The Board does not find these reports as credible as in-service documentation, because they vary greatly throughout the record. In his February 2010 claim he reported back pain beginning in 1990. VA treatment records show that in December 2007 he reported back pain for approximately 30 years since an injury while working for an automobile company. In April 2011 he reported back pain since approximately 1981 and in July 2011 he reported back pain since lifting something in 1964, prior to service. At his June 2014 hearing, he reported back pain that initially arose in service. At his October 2016 VA examination, he reported that his back pain began 40 years prior when lifting a car bumper with his brother. Additionally, he reported April 2013 that his back pain had continuously worsened since a December 2012 car accident, yet he denied this when speaking to the June 2017 private physician. These varying accounts make his statements less credible than the contemporaneous information which does not show any medical diagnosis of in-service arthritis. The October 2016 VA examiner's opinion attributes the Veteran's current disability to the manual labor he performed in the decades between separation and the documented treatment in 2001. The Board notes that according to the Veteran's claim, he began treatment for his back pain in 1995, but the rationale of the VA examiner is equally probative considering the time gap between 1968 and 1995. Furthermore, while the Veteran's representative faults the VA examiner for is characterization of in-service treatment, the Board notes that the examiner stated merely that there are no medical records, not that there is no evidence, and the period referred to by the examiner is the period between separation and 2001, not the period of service itself. The examiner does not deny in-service back pain; rather, the examiner notes the lack of evidence to connect the in-service back pain with current back pain. For these reasons, the Board finds that the evidence weighs against a finding that a current low back disability is related to service or manifested within one year of separation from service. Service connection is therefore denied. Generalized Arthritis of the Joints The Veteran seeks service connection for generalized arthritis of the joints. Service treatment records do not reflect any symptoms of or treatment for arthritis, with the exception of the Veteran's report of having experienced arthritis in the report of medical history accompanying his March 1968 separation examination. In conjunction with that statement, however, the Veteran described his recurrent back pain, and the Board therefore takes this statement as referring to his low back pain only. VA treatment records reflect that in October 2006 the Veteran reported a chronic history of joint pain for many years in his hands, wrists, left hip, and both knees. He was referred for a rheumatology consultation. In his February 2010 claim, the Veteran reported arthritis that began in 1990, with treatment beginning in 1995. VA treatment records reflect that in July 2011 when being treated for his back pain he also reported neck pain and knee pain. X-rays of the knees were normal and showed marked degenerative changes in the lower cervical spine. In a June 2014 statement, the Veteran's representative argued that his current arthralgia is related to his reports of arthritis upon separation from service. VA treatment records reflect that in October 2014 the Veteran reported a long history of bilateral knee pain. He subsequently reported that he had knee pain for 30 years. Private treatment records include an August 2015 x-ray showing osteoarthritis of the right knee with a valgus deformity. The Veteran was diagnosed with possible rheumatoid arthritis and referred to a rheumatologist, though there is no indication that he followed up on this referral. In June 2016 he was diagnosed with arthralgia of the right shoulder and the right knee after being treated for a fall causing pain in his shoulder, knee, and lower back. An x-ray showed tricompartmental osteoarthritis changes in the right knee. VA treatment records reflect that in May 2016 the Veteran reported right shoulder pain and bilateral knee pain with instability. He again reported a long history of knee pain. In a July 2016 claim for a nonservice-connected pension, the Veteran reported that arthritis in all of his joints began in 1969. The Veteran underwent a VA examination in October 2016. He reported symptoms consistent with degenerative arthritis of multiple joints over the past 10-15 years, including his neck, back, right shoulder, both hands, both knees, and left ankle. The examiner diagnosed degenerative arthritis of multiple joints and explained that there was no medical history or objective evidence consistent with a non-degenerative type of arthritis. Although in August 2015 a nurse practitioner diagnosed rheumatoid arthritis, he had not been worked up for this rheumatologically, and there is no objective evidence of rheumatoid arthritis on clinical examination of the joints. The examiner opined that it was less likely than not that the Veteran's current disability was incurred in or caused by an in-service injury, event, or illness. This opinion was based on the rationale that there was no evidence in service of arthritic involvement from either degenerative arthritis or non-degenerative arthritis, and that subsequent arthritis was not noted until around 2007 when mild degenerative arthritis was noted in several joints, most severe in the knees. In a November 2016 statement, the Veteran's representative stated that the October 2016 VA examiner erred in stating that there was no evidence within the Veteran's service record to suggest that the Veteran had arthritis issues. The Board finds that the evidence weighs against a finding that generalized arthritis of the joints is related to service or manifested within one year of separation from service. The only indication in the record of any in-service arthritic disability not affecting the lower back is a check mark the Veteran made in his March 1968 report of medical history accompanying his separation examination indicating that he had experienced arthritis or rheumatism. The only elaboration provided was that he had strained his back one year prior and had since had some recurrence. The Board therefore interprets this statement to refer to his back pain only, as the Veteran has not provided any alternative interpretation. He has not specified any specific joints other than the lumbar spine to which he may have been referring. There is no record of any treatment or diagnosis of arthritis while in service, and the Veteran has not reported any in-service injury or symptoms which he believes are related to his reported current generalized arthritis. To the extent that he is claiming arthritis secondary to his claimed lumbar spine arthritis, secondary service connection is not available because the Board herein denies service connection for a lumbar spine disability. For these reasons, the Board finds that the evidence weighs against a finding that generalized arthritis of the joints is related to service or manifested within one year of separation from service. Service connection is therefore denied. Liver Disease The Veteran seeks service connection for liver disease, to include hepatitis C. Service treatment records do not reflect any symptoms of or treatment for any liver disease. VA treatment records reflect that in March 2007 the Veteran was informed that his blood had tested positive for hepatitis C. In December 2007 positive risk factors included the Veteran's body piercings and history of intravenous drug use. In his February 2010 claim, the Veteran reported liver disease that began in 1990, with treatment beginning in 1995. VA treatment records reflect that in June 2013, the Veteran reported a history of polysubstance abuse and untreated hepatitis C. He was tested and diagnosed with hepatitis C with liver function within normal limits. Records show that he subsequently took part in a research trial. In a June 2014 statement, the Veteran's representative noted that in the report of medical history accompanying his March 1968 separation examination, he indicated that he had an excessive drinking habit. Because excessive drinking is a risk factor for liver disease, the representative stated that he might have incurred his current liver disease during service. In a July 2016 claim for a nonservice-connected pension, the Veteran reported that his hepatitis C began in 1969. The Veteran underwent a VA examination in October 2016. He reported being diagnosed with hepatitis C 7-8 years prior. He was diagnosed with hepatitis C and cirrhosis of the liver. The examiner opined that it was less likely than not that liver disease was related to service. This opinion was based on the rationale that hepatitis C, diagnosed 33 years after separation from service, was most likely caused by his intravenous drug use in the interim. Furthermore, the examiner explained that cirrhosis of the liver was most likely caused by hepatitis C. The Board finds that the evidence weighs against a finding that liver disease is related to service. The October 2016 VA examiner provided a probative opinion explaining that the Veteran's liver disease was likely caused by his intravenous drug use and not by service. Even if his liver disease were caused by the excessive drinking reported in service, however, service connection would not be available. There is no indication that the disease itself arose in service; there is no record of a diagnosis until 2007 and in the Veteran's claim he reported an onset date of 1990, decades after separation from service. To the extent that liver disease was caused by excessive drinking in service, such alcohol consumption is considered willful misconduct and cannot form the basis of a service connection claim. 38 C.F.R. § 3.301(d). For these reasons, the Board finds that the evidence weighs against a finding that liver disease is related to service, and service connection is therefore denied. ORDER Service connection for a low back disability is denied. Service connection for generalized arthritis of the joints is denied. Service connection for liver disease, to include hepatitis C, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs