Citation Nr: 1756956 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-08 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for right leg sciatica. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1974 to June 1982. He had additional service in the Army Reserve. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified before the undersigned Veterans Law Judge at a July 2015 hearing by videoconference. The case was most recently before the Board in February 2017. At that time, the Board denied a compensable rating for hypertension. The Board also remanded the remaining two service connection claims for additional development. FINDINGS OF FACT 1. The Veteran's low back disability did not have its onset in service and is not otherwise related. 2. The Veteran's right leg sciatica is not related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09 (2017). 2. The criteria for establishing service connection for right leg sciatica have not been met. 38 U.S.C. §§ 1110, 1131, 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, 1131; 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. In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred or aggravated during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying active service. 38 U.S.C. §§ 1101, 1112; 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Low Back The Veteran contends that his back disorder is related to service, including injuries he sustained during service. He sought treatment for his back condition during service and contends that the symptoms continued thereafter. The Veteran's service treatment records (STRs) show that in January 1980, the Veteran complained of back pain that began approximately November 1, 1979. Tenderness of the lumbar spine was indicated and lumbar syndrome was diagnosed. The Veteran was afforded an x-ray on January 10, 1980, which did not show any significant pathology. The Board notes no other evidence of back complaints, diagnosis or treatment was found in the STRs, including examinations dated November 1974, March 1978 and November 1978. Further, the April 1982 separation examination revealed no spine disorder. Notably, in August 1982, the Veteran underwent VA examination in connection with multiple claims. The examiner determined there was no low back pathology, including after x-rays showed no significant bony abnormalities. Also, in the March 1986 report of medical history during the Veteran's service in the Army Reserves, he did not report back pain and the spine examination was normal. The first post-active service report of recurrent back pain and occasional muscle spasm was in October 1998, during a periodic Reserve examination. However, the October 1998 medical examination revealed no back disorder. Following the Veteran's November 2012 claim, the Veteran submitted an April 2013 statement in which he indicated his back disorder had its onset during service and has continued since that time. He stated it was more acute at that time than during service. The Veteran was afforded an August 2014 VA examination in which the examiner indicated the low back condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. She stated the low back condition was less than likely permanently aggravated or a result of any event or condition that occurred during service, or within one year of discharge from service. She noted the Veteran's STRs indicated there was a one-time complaint of low back pain documented with multiple subsequent records that evaluated the Veteran's back without any reference or complaint about the low or upper back. She noted Dr. K's chiropractic treatment records, from the early 2000's, and concluded the preponderance of the evidence in service and since does not support a chronic back condition incurred during service. The Veteran was afforded a July 2015 Board hearing during which he similarly contended his low back disorder occurred during service and continued thereafter. He stated one of his duties was reeling in power cables which weighed between 225 and 245 pounds. He indicated his spinal stenosis and bulging discs were partially due to the fact that he lifted these heavy reels during service. The Board remanded the claim in November 2015 for an additional VA examination. Following the remand, a July 2015 private opinion was received from Dr. T.G. He stated the Veteran was experiencing back pain which radiates down his right lower extremity. He noted, with x-rays in support, the Veteran has advancing L4-L5 degenerative disc disease (DDD), as well as right lower extremity radiculopathy, secondary to advancing L4-L5 DDD. He stated the Veteran brought service records from January 1980 which described back pain at that time, with associated right lower extremity cramping and running. He concluded it is more likely than not that the Veteran had some back symptoms that date back to the 1980's, that have progressed over time into the current disorder, L4-L5 DDD and right lower extremity radiculopathy. Subsequently, a January 2016 VA examination was afforded to the Veteran, pursuant to the prior Board remand. The examiner diagnosed him with ankylosing spondylitis and degenerative arthritis of the spine. She indicated diagnoses of intervertebral disc syndrome (IVDS) with left lower extremity radiculopathy and retrolisthesis of L2-L3. A February 2016 opinion from the examiner noted the low back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated there was one complaint in January 1980 for back pain and an x-ray did not show any significant pathology as he was diagnosed with lumbar syndrome. She stated the separation examination in April 1982 did not show any complaints of a chronic back condition and there was no further medical records documenting symptoms of back pain until October 1998, 16 years post-service. She further noted lumbar syndrome is considered an acute condition, which with proper management, is a time limiting condition. The Board remanded the claim again in February 2017 due to the conflict in the medical evidence and requested an addendum opinion which considered the evidence of continuity of back pain since service. A VA addendum opinion was submitted in February 2017 by the VA examiner who conducted the January 2016 VA examination. She indicated the Veteran's back disorder was not related to service. She noted the Veteran's and Dr. T.G.'s reports of the onset of the Veteran's back pain during service; however, she opined there is no medical evidence to establish a nexus between the claimed in-service condition and the current back disability. She stated the first diagnosis of a back disorder was not until 2013, approximately 31 years following service. She noted the determination of whether the Veteran had back symptoms after service without associated medical evidence is not a medical issue. Thus, based on the evidence of record, the medical basis provided for the opinion remains unchanged. The February 2017 examiner restated that the Veteran had one complaint of back pain during service in January 1980; the x-ray from January 1980 showed no significant pathology; and his April 1982 separation examination did not show any complaints or examination findings of a chronic back condition. The first symptoms of back pain were not reported until October 1998 and therefore, it is less likely than not that the Veteran's degenerative arthritis of the lumbar spine had its onset during, or is otherwise related to, service. After review of all the relevant evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for a low back disability. The Veteran has a current low back disability, found to be multilevel degenerative arthritis/DDD of the spine. However, the evidence is not sufficient to support a finding that the Veteran's current condition had its onset in, or was otherwise related to service. In reaching such conclusion, the Board accords great probative weight to the January 2016 VA examiner's opinion, as well as her February 2016 and February 2017 opinions. These opinions are highly persuasive as they are predicated on a thorough review of the record, to include the Veteran's STRs, post-service records, the positive July 2015 private medical opinion, and include a current examination with supporting diagnostic testing. The opinions proffered considered all of the pertinent evidence of record, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data, as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The examiner's opinions support that the Veteran's current low back disability is not related to service, including his in-service one-time treatment for back pain, and that the documented arthritis of the lumbar spine did not have its onset within one year of separation from service. The Board notes an August 2017 statement was submitted thereafter by the Veteran. He indicated that he had multiple complaints of back pain during service and not just one. He stated he lifted heavy cable reels repeatedly in and out of trucks and also spent much of his days on duty bent over a radar console for eight to twelve hours. He stated these jobs could have caused back damage due to the continuous standing, bending and/or lifting. Additionally, he indicated he sought back treatment from approximately 1989-1995; however, he stated, the physician who treated him during that time is deceased and any records were destroyed. The Board acknowledges the Veteran's lengthy period of honorable service, as well as his statements that his back condition had its onset in service. However, the Veteran is a lay person. The Board notes that lay persons are competent to report objective signs of illness, such as back pain. Thus, the Veteran is competent to report that his back pain began in service. However, there is no indication that he has specialized training in diagnosing or determining the etiology of degenerative spine disorders, which in this case is a complex medical question. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The etiology of degenerative arthritis of the lumbar spine requires the opinion of a medical professional. Thus, the VA opinions from January 2016, February 2016 and February 2017 are more probative than the Veteran's lay statements. Additionally, as noted above, the record supports the Veteran sought treatment during service only once for back pain. However, he sought treatment for a variety of other conditions throughout service on a regular basis. There are STRs, including after January 1980, for hypertension, chest pain and foot problems. Further, the post-active service VA examination in August 1982 was normal and in the March 1986 report of medical history, he indicated foot problems, hypertension, a hernia and an ulcer; however, no mention of back pain was found. The fact that he indicated complaints for other conditions after service, but not his back until 1998, and there were normal spine examinations during this time period, weighs against the credibility of his statements that his back disorder has persisted since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); Caluza v. Brown, 7 Vet. App. 498 (1995). With regard to the July 2015 physician's opinion, the Board finds the VA opinions noted above are more probative with regard to the nexus element required for service connection. While Dr. T.G. indicated the Veteran's back symptoms date back to the 1980's and have progressed over time to the current L4-L5 DDD, he did not fully address the evidence of record. He did not discuss the January 1980 x-ray, which exhibited no significant pathology or the April 1982 separation examination which revealed no spine complaint or diagnosis. Further, he did not address the post- active service normal August 1982 VA examination, the March 1986 report of medical history during which the Veteran did not report back pain or the gap in back complaints in the record for sixteen years, until October 1998. As the VA examiner discussed the pertinent evidence of record more fully in her opinions and provided a complete rationale which cited to the record, her opinions are afforded more probative weight than the July 2015 private opinion, which does not appear to be based on an accurate medical history. With regard to a theory continuity of symptomatology, although it is contended by the Veteran, the Board finds it is not established so as to presume a nexus for a chronic disease under 38 C.F.R. § 3.303(b) for degenerative arthritis of the lumbar spine for the same reasons described above. In consideration of this evidence, the Board finds that the Veteran's current degenerative condition of the spine did not have its onset during and is not otherwise related to service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability. As such, that doctrine is not applicable in this claim, and service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Right Leg Sciatica The Veteran contends that he has right leg sciatica which began in service. During the July 2015 hearing, he stated his right leg disorder had its onset during service, and is related to the heavy lifting he performed for his military duties. Alternatively, he has claimed right leg symptoms as secondary to his back disorder. The Veteran's STRS were silent for complaints, treatment or diagnosis for right leg sciatica. His April 1982 separation examination was negative for lower extremity symptoms or disorders. The Veteran sought treatment in December 2012 for complaints of right lower leg hardness and numbness, as well as numbness after sitting down. The physician noted that there may have been some impingement of the peroneal nerve and noted peripheral neuropathy. However, he indicated a nerve conduction velocity study was required to determine the presence of a condition and ordered such for the Veteran. The Veteran was afforded an electrodiagnostic consultation in January 2013. He reported complaints of cramping and pain in his right calf which improved with walking, as well as pain around his right knee. However, the test results showed a normal study. The physician indicated the EMG was without signs of muscle or nerve pathology and there was no electromyographic evidence for radiculopathy or peripheral nerve injury in the areas tested. He indicated the study revealed right peroneal and tibial motor within normal limits, as well as normal right sural sensory. The Veteran submitted an April 2013 statement in which he indicated he continued to suffer from peripheral neuropathy of the lower right leg and that the intensity and severity of the neuropathy varies on a daily basis. He further stated that pain medication and TENS stimulation produces inconsistent results and that he experiences neuropathy consistently within 15-20 minutes of sitting. In March 2014, the Veteran submitted a notice of disagreement which claimed peripheral neuropathy of the right lower extremity, as secondary to a low back disorder. The Board remanded the claim in November 2015 for a VA examination to determine if the Veteran had sciatica of the right leg and the etiology of such. The July 2015 physician (Dr. T.G.) indicated the Veteran continued to have pain which radiated down his right lower extremity. He stated the Veteran was suffering from right lower extremity radiculopathy, secondary to advancing L4-L5 DDD. He concluded the Veteran's back symptoms progressed since service to the current L4-L5 DDD and right lower extremity radiculopathy. Thereafter, the Veteran was afforded a January 2016 VA examination, pursuant to the prior Board decision. The examiner indicated the Veteran does not have right lower extremity radiculopathy. Instead, she indicated, he suffers left lower extremity radiculopathy of the sciatic nerve. Significantly, the Veteran reported intermittent shooting pain, with paresthesias and numbness, from his lower back radiating into the left buttock and to the left lateral leg, stopping just past the knee. Thus, the examiner concluded there was no right leg sciatica related to service. She noted the Veteran sought treatment with a chiropractor, during the early 2000's, with complaints or moderate to severe left (not right) sacroiliac symptoms. She further indicated he currently complains of intermittent radiating pain, paresthesias and numbness from the low back to the left (not right) lateral leg. She concluded "the Veteran does not currently have sciatica of the right leg as evidence by no current right leg sciatica symptoms and normal right leg neurological examination today." The Board notes the Veteran submitted an August 2017 statement thereafter; however, it did not discuss any current right leg sciatica. After review of all the relevant evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for right leg sciatica. The evidence supports that the Veteran does not have current right leg sciatica complaints. To the extent he does have a right leg disorder, the evidence does not support that such is related to service or a service-connected disability. The Veteran sought no treatment in service for a right leg disorder, including the April 1982 separation examination. Further, the post-service medical records do not support a link between service and any current right leg disorder. The January 2013 nerve conduction study showed a normal study. The physician indicated the EMG tests were without signs of muscle or nerve pathology, or radiculopathy or peripheral nerve injury. The examiner indicated the study revealed right peroneal and tibial motor within normal limits, as well as normal right sural sensory. The Board acknowledges there is lay and medical evidence in support of the claim. The Veteran's April 2013 statement indicated he continued to suffer from peripheral neuropathy of the lower right leg and that the symptoms occur while he is sitting. In March 2014, the Veteran noted peripheral neuropathy of the right lower extremity, as secondary to a low back disorder. Additionally, the July 2015 physician indicated the Veteran has pain which radiates to his right lower extremity, including right lower extremity radiculopathy. However, the Board accords greater probative weight to the post-remand January 2016 examiner's opinion. She indicated the Veteran does not have a right lower extremity disorder. Significantly, the Veteran did not report any right lower extremity symptoms or conditions during the examination. The Veteran reported intermittent shooting pain, with paresthesias and numbness, from his lower back radiating into the left buttock and to the left lateral leg, stopping just past the knee. Further, the examiner noted a normal right leg neurological examination and that the Veteran suffers left lower extremity radiculopathy of the sciatic nerve, not right. Even acknowledging the July 2015 opinion in support, the Board must find that the preponderance of the evidence is against the Veteran's claim of service connection for right leg sciatica. In reaching such conclusion, the Board notes the January 2016 VA examiner's opinion found a normal right leg examination from a neurological perspective. Further, the Veteran did not even report right leg symptoms to the January 2016 examiner. Thus, the examiner's opinion is highly persuasive as it is predicated on a thorough review of the record and a current examination of the Veteran. Her opinions were clear and consistent in finding no right leg sciatica. In consideration of this evidence, the Board finds that to the extent the Veteran has right leg sciatica, such did not have its onset during and was not otherwise related to service. Further, it is not related to a service-connected disability as the possible primary disability was not found to be service connected in the decision above. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of service connection for right leg sciatica. As such, that doctrine is not applicable in the instant appeal, and service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ORDER Service connection for a low back disability is denied. Service connection for right leg sciatica is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs