Citation Nr: 1801351 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-33 635A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a left hip disability, to include as secondary to a lumbar spine disability. 3. Entitlement to service connection for a right hand disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD L. Bush, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 to December 1978, December 2001 to November 2002, and March 2003 to March 2004, with additional active service prior to December 2001 and additional service in the National Guard. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from December 2010 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In August 2013, the Veteran testified before a Veterans Law Judge (VLJ) at a videoconference hearing. A copy of the hearing transcript has been associated with the record. As the VLJ who presided over the hearing is no longer with the Board, the Veteran was provided the opportunity to have another hearing. He declined an additional hearing in August 2017 correspondence. The Board remanded the issue on appeal for additional development in February 2015. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to compensation for a right hand disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence does not demonstrate that the Veteran's currently diagnosed lumbar spine disability had its onset during active duty service, manifested within one year of service, or is otherwise etiologically related to service. 2. The evidence does not demonstrate the Veteran has a currently diagnosed left hip disability. CONCLUSIONS OF LAW 1. The criteria are not met to establish service connection for a lumbar spine disability. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria are not met to establish service connection for a left hip disability. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria for Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (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) (2017). Under 38 C.F.R. § 3.303 (b) (2017), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b) (2017). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). In this case, the Veteran is currently diagnosed with mild multi-level disc disease of the thoracolumbar spine (L3-4, L2-3, and L4-5) and arthritis is considered a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies with respect to the lumbar spine claim. In addition, the Board notes that where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Service Connection for a Lumbar Spine Disability The Veteran maintains that his lumbar spine disability should be service-connected. He avers that his lumbar spine disability began while in service, characterized by pain that has radiated into his left leg and hip, and has persisted ever since. See Hearing Transcript. The Board finds that the Veteran is currently diagnosed with multi-level disc disease of the lumbar spine, thereby satisfying the first element for direct service connection. See November 2015 VA Examination. With regard to the second element of direct service connection, an in-service event, disease, or injury, the Board notes that the Veteran's service treatment records show an undated physical noting a "back strain" in 1981. The Veteran complained of back and abdominal pain in 1994. Later notes indicate that the Veteran's back and abdominal pain was caused by a ureteral stone. See May 1994 STR. Later, in 2003, the Veteran was treated for hip and leg pain. His X-rays were normal. He was prescribed medication and the prognosis was a possible torn ligament. See August 2003 STR. In September 2003, the Veteran reported left hip pain and was diagnosed with bursitis. See September 2003 STR. On the Veteran's January 2004 Report of Medical Assessment, a left leg pain and numbness were noted. The physician wrote of a ligament injury that was getting better with no restrictions or treatment needed. See January 2004 Report of Medical Assessment. While the Veteran's STRs do not reveal any other instances of complaint, treatment, or diagnosis of a back condition specifically, the Board finds that the aforementioned in-service back, leg, and hip complaints satisfy the second element of direct service connection. The third and final element of direct service connection requires a nexus between the Veteran's current disability and the event in service. While the Veteran asserts that his current back disability is related to back pain he experienced in service, the Board notes that an opinion regarding the etiology of the Veteran's current multi-level disc disease requires knowledge of the musculoskeletal system and the various causes of arthritis, and would involve objective clinical testing that the Veteran is not competent to perform. An opinion regarding the etiology of the Veteran's arthritis requires the aforementioned specialized training and the issue is therefore not susceptible of lay opinions on etiology; thus, the Veteran's statements cannot be accepted as competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran was provided a November 2015 VA examination. Prior to rendering an opinion, the examiner reviewed the record, interviewed the Veteran, and performed a physical examination. She concluded that the Veteran's current back disability was less likely as not caused by, related to, associated with, or proximately due to the Veteran's back complaints, injuries, or events that occurred during service. She found that the current diagnosis is not the same condition as was in service, specifically noting that the in-service medical records showed that the Veteran's back and abdominal pain was diagnosed as a ureteral stone, not a back condition. She further stated that the undated physical note of back strain from 1981 did not appear to be associated with active duty. Further, the examiner stated that disc disease is the result of aging, chronic wear and tear over the years, or trauma. As there was no evidence of trauma, she stated that the Veteran's multi-level disc disease was likely due to the normal wear and tear of aging. The examiner also addressed the Veteran's contentions that the leg and hip pain he experienced while in service was radiculopathy symptomatic of a back disability that was not diagnosed at the time. She noted that there was one instance of leg numbness noted in the STRs and nothing regarding the Veteran's left hip to indicate a back condition. The examiner stated that that numbness in the legs is not always associated with radiculopathy or a back condition; it could also be associated with infection, inflammation, trauma, vitamin deficiencies, thyroid conditions, diabetes, etc. She stated that the Veteran's currently diagnosed mild disc disease involving the L3-4 was not consistent with radiculopathy, nor were the Veteran's in-service complaints of lateral hip to knee pain consistent with the dermatone to be expected if there were L3-4 radiculopathy. Thus, she found that the Veteran's hip complaints were less likely caused by, related to, or proximately caused by his current back disability. See November 2015 VA examination. The Board finds this opinion to be the most probative on the question of nexus as it is supported by clear and thorough rationale, including an alternative etiology of the Veteran's current back disability. Therefore, service connection on a direct basis is not warranted. The Board has also evaluated whether the Veteran has exhibited continuous symptoms of a back disability or developed a back disability to a compensable degree within a year of separation from service. The available medical evidence shows that the Veteran saw a chiropractor two years following discharge and was diagnosed with acute lumbago. See July 2006 Private Treatment Record. He was not seen again for back pain until he went to his private physician in 2011 where he was provided an MRI and diagnosed with mild L3-4 posterolateral disc protrusion with other smaller disc bulges at L2-3 and L4-5. See June 2011 Private Treatment Record. There is no objective evidence demonstrating continuity of symptomatology, nor is there evidence pointing to the development of a back disability to a compensable degree within a year of separation. Thus, service connection for a back disability is not warranted on either basis. In sum, the preponderance of the evidence weighs against a finding that the Veteran's current back disability is related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. Service Connection for a Hip Disability The Veteran maintains that he should be service-connected for a hip disability as secondary to a lumbar spine disability. The Board finds that service connection for a hip disability is not warranted on a direct or secondary basis. The Board acknowledges that the Veteran experiences hip pain. However, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) aff'd 259 F.3d 1356 (Fed. Cir. 2001) (affirming on other grounds without addressing pain alone). As hip pain is not a disability, it cannot by itself be service-connected. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."); see also Begmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir.1997). In the absence of a present disability, there can be no valid claim. Accordingly, entitlement to service connection for a hip disability is denied. ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a left hip disability, to include as secondary to a lumbar spine disability, is denied. REMAND Unfortunately, a remand is required for the remaining issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this issue so that the Veteran is afforded every possible consideration. The Veteran maintains that a metal object became embedded in his hand in 2002 while in service. He states that since that time he has experienced right ring finger and right thumb pain. In November 2015, he was provided a VA examination where the examiner provided a negative opinion regarding his claimed right hand disabilities. However, the examiner predicated his opinion on inaccurate information, stating that there was no evidence to suggest that the metal in the Veteran's thumb occurred during service, despite him serving on active duty for the majority of 2002. He also noted that there was no evidence of a right ring finger fracture without acknowledging the Veteran's documented complaints of pain in 2002. As the negative nexus opinion was clearly based on an inaccurate factual premise and did not account for the Veteran's lay contemporaneous complaints of pain, the Board finds that a new opinion is required. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA medical center(s) and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must be clearly documented in the claims file. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. After securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All efforts to obtain such information and the information obtained must be documented. If, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice to the Veteran and his representative. 3. Thereafter, the AOJ should arrange for an addendum medical opinion to be provided. The Veteran's entire record (including this remand and all evidence and information received pursuant to the development sought above) must be reviewed by the examiner prior to him or her rendering a medical opinion. For any diagnosed right hand disability, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disability originated during a period of active service or is otherwise etiologically related to the Veteran's active service. The examiner should keep in mind that the Veteran was on active duty from January to November 2002. The examiner should also note the Veteran's complaints of right hand pain in 2002. The rationale for the opinion must be provided. If the examiner is unable to provide the required opinion, he or she should explain why. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be re-adjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs