Citation Nr: 1800856 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 14-14 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for post-operative lumbar fusion. 2. Entitlement to service connection for arrhythmia, including as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to September 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In August 2017, the appellant testified at a travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's virtual claims file. FINDINGS OF FACT 1. The Veteran's post-operative lumbar fusion (back disability) is not related to his military service and was not manifested within the one year following separation. 2. The Veteran did not have service on land or in the waters offshore of the Republic of Vietnam during the Vietnam War era, including the inland waterways, and is not presumed to have been exposed to an herbicide agent during military service, nor was he otherwise exposed to an herbicide agent during military service. He was stationed in the United States for his entire period of active service. 3. Arrhythmia was not manifest during active duty service nor is it related to service. CONCLUSIONS OF LAW 1. The Veteran's back disability was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2017). 2. The Veteran's arrhythmia was not incurred in or aggravated by service, is not attributable to service, and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). In a September 2017 VA Form 21-4138, the Veteran requested that he be scheduled for a VA spine examination since his primary provider refused to complete a disability benefits questionnaire (DBQ) for him. However, the Board finds that the Veteran was already afforded a VA examination in regard to his back claim; the examination was adequate and therefore finds that the Veteran is not entitled to another VA examination. Here, the Veteran was not afforded a VA examination in connection with his arrhythmia claim and the Board finds that he is not entitled to one. As will be discussed below, even though there is evidence of a current disability, there is no credible evidence of an "in-service event, injury or disease," which would support incurrence or aggravation. Further, there is no indication that the current disability may be related to an in-service event. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Service Connection In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 (West 2012) and 38 C.F.R. § 3.303(a) (2017) a Veteran must satisfy a three element test: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Presumptive service connection is available for chronic diseases which manifest to a degree of 10 percent or more within 1 year of the date of separation. 38 U.S.C. § 1112(a)(1) (West 2012). Arthritis or degenerative disc disease is listed as a chronic disease. Also, presumptive service connection is available for some disabilities if there is proof that the Veteran was exposed to an herbicide agent that manifested to a degree of 10 percent or more within the time period specified. 38 C.F.R. § 3.307 (a)(6)(ii)(2017). Back Here there is evidence of a current disability - namely post-operative lumbar fusion and degenerative disc disease. There is evidence on the Veteran's April 1975 separation examination of back pain. Having found that the Veteran has a current disability and an in-service incurrence, the question turns to whether the two are related. Here, the Board finds that the Veteran's current back disability is not related to his in-service back pain. The Veteran was afforded a VA examination in August 2011 where the examiner noted the Veteran's history of back complaints on separation, and post service treatment for herniated disc 14 years after his discharge. He opined that it was less likely than not that the Veteran's post-operative lumbar fusion with degenerative disc disease at L4-5 was incurred in or otherwise related to service. The examiner reasoned that the Veteran's complaints of low back in service were so trivial that they never required him to seek treatment in service or for many years after service until his civilian work injury - 14 years post service - which was so severe it required spinal surgery and disabled him for life. The Board finds the August 2011 VA examiner's opinion probative. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The August 2011 examiner reviewed the Veteran's claims folder, including service treatment records documenting the in-service back complaints; considered the Veteran's statements and concluded that it was less likely than not the Veteran's current back disability was related to his in-service complaints. The examiner acknowledged the Veteran's in-service back pain report at separation, but opined that the current symptoms were not related to the in-service back pain symptoms, and provided the underlying reasons for the opinion. Although there is evidence that the Veteran complained of back pain during his April 1975 separation examination, the Veteran's subsequent back injury while in civilian status years after discharge cannot be ignored. It is clear that the Veteran believes that a nexus exists. Such a lay belief sometimes is sufficient. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) It indeed is error to suggest that lay evidence can never be enough to establish that there is a nexus between a claimed condition and service. See Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). However, the causal relationship between degenerative disc disease and post-operative lumbar fusion is a complex medical issue for which the Veteran is not qualified to offer an opinion. Thus, while the Board has considered the Veteran's statements, it finds the VA examination opinion to outweigh them. The Board further finds that presumptive service connection is not warranted because the evidence does not show that he has a diagnosis of arthritis becoming manifest to a degree of 10 percent of more within one year from the date of separation. The Veteran was not diagnosed with degenerative disc disease for many years post service. Regarding continuity of symptomatology, although the Veteran has asserted that his back pain began in service, it is noted that the Veteran's back was evaluated as normal during service, and at the time of his separation examination. Accordingly, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. The Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. Arrhythmia Here, there is competent and credible evidence that the Veteran has a current disability - specifically a diagnosis of supraventricular arrhythmia - atrial fibrillation. As an initial matter, the Board finds that there is no probative and credible evidence of an in-service incurrence of any condition or injury affecting the Veteran's heart during service. Rather, the Veteran contends that he was exposed to herbicide agents during service and relates such exposure to his subsequently developed heart disability. However, there is no competent evidence which indicates that the Veteran was exposed to such agents. In that regard, the Veteran testified at the Board hearing that he worked stateside underground in launch facilities at the Vandenberg Air Force Base and believes that herbicide agent were used to control the foliage around the facility. He further testified that the herbicide agents were sprayed from the top down and he believes the ventilation system/fans brought in the agents to his work environment. He does not submit any affirmative proof that herbicides were used at his in-service work locations and admits that he does not know what type of chemical was used to control the foliage. See Board Hearing Transcript, p.31. The Board finds that the Veteran is not competent to state that he was exposed to herbicide agents. Further, the Board notes that presumptive service connection is available to Veterans who have specific disabilities related to in-service herbicide exposure. The Veteran's specific heart disability is not one of the covered disabilities under 38 C.F.R. § 3.309(e) and there is no competent evidence of herbicide exposure. What is more, there is no competent evidence which otherwise relates the Veteran's arrhythmia to service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In August 2017, the Veteran submitted an article which referenced another Board decision where the judge recognized a Veteran's exposure to toxic chemicals outside of the typically recognized areas for Agent Orange claims. First, by law, Board decisions are nonprecedential and are not binding on subsequent Board decisions. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. Second, the facts of the case in question are starkly different from the instant Veteran's case. In that regard, the Veteran in the referenced article had foreign service in South Korea. However, the Veteran in the instant case had no foreign service and alleges exposure to herbicide agents based on his stateside service. Therefore, the Board does not assign any probative value to the submitted article or its related Board decision. Accordingly, the Board finds that the preponderance of the evidence is against the claim; therefore, the benefit-of-the-doubt standard of proof does not apply. Service connection is not warranted for arrhythmia. 38 U.S.C. § 5107 (b). ORDER Entitlement to service connection for post-operative lumbar fusion is denied. Entitlement to service connection for arrhythmia, to include as secondary to Agent Orange exposure, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs