Citation Nr: 1801441 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-17 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a left leg disorder. 2. Entitlement to service connection for a low back disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from May 1966 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the VA Regional Office (RO) in Jackson, Mississippi. In March 2014, the Veteran testified at a hearing held at the RO before the undersigned. The case was remanded in January 2015 and September 2016 for further development. The Veteran waived RO review of new evidence in a June 2017 submission. The Board observes that the Veteran was initially represented by a Veterans Service Organization. However, in November 2016, he appointed an attorney as his representative. Correspondence received in January 2017, before recertification to the Board, shows that the attorney no longer represented the Veteran. To date, the Veteran has not submitted a new power of attorney in favor of any representative. As such, the Board considers the Veteran to be self-represented in this appeal. In August 2017, the Veteran filed a motion to advance this appeal on the Board's docket due to his health. The undersigned has reviewed the motion and supporting evidence, and is granting this motion. Accordingly, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A current left leg disorder clearly and unmistakably preexisted the Veteran's service, and clearly and unmistakably was not permanently worsened beyond normal progression during or as a result of his service. 2. The Veteran's current low back disorder is not shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left leg disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 2. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Service connection claims A. Applicable laws and regulations Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain disabilities, including arthritis, are presumed to be service connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. A veteran is 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, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304(b) (2017). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). A preexisting injury or disease will be considered to have been aggravated by 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. 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 to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). B. Left leg disorder In this case, the Board acknowledges the diagnosis of a current left leg disorder; post-service left leg problems have been documented since October 1976 when pain and weakness was noted. Instability was diagnosed at an April 2015 VA knee and lower leg conditions examination. The Board has reviewed the service treatment records and notes that his August 1965 induction examination showed normal lower extremities. The Veteran reported foot trouble in his report of medical history; a cut on left foot was noted. A July 1966 record shows that the Veteran reported a past history of surgery on his Achilles tendon; the diagnosis was questionable cellulitis of the left Achilles tendon. A July 1966 narrative summary shows that he had a history of an injury to his left Achilles tendon when he was eight. It shows that the Veteran had been in a cast for approximately one year with subsequent disuse atrophy of the leg muscles. Examination showed chronic and longstanding atrophy due to disuse. The Veteran was diagnosed with acquired atrophy that existed prior to service and was found physically disqualified for induction. His medical board separation examination showed abnormal lower extremities; the acquired atrophy was noted. Given the above, the remaining questions for the Board is whether the Veteran's current left leg disorder clearly and unmistakably preexisted his service; and, if so, whether it clearly and unmistakably was not permanently worsened beyond normal progression during or as a result of his service. If a current disorder did not clearly and unmistakably preexist the Veteran's service, the Board must address whether there is an etiological relationship, or nexus, between the current disability and service. The Veteran described injuring his leg during basic training at his March 2014 hearing. Evidence directly addressing the question of whether a left leg disorder clearly and unmistakably preexisted his service; and, if so, whether it clearly and unmistakably was not permanently worsened beyond normal progression during or as a result of his service is limited to a November 2016 VA knee and lower leg conditions examination report with a February 2017 addendum opinion. While the April 2015 examiner provided a detailed opinion that the Veteran's left leg disorder was not related to service, the opinion did not meaningfully address the question of whether it clearly and unmistakably preexisted service; and, if so, whether it clearly and unmistakably did not increase in severity during service. Additionally, although the Veteran submitted a July 2017 disability benefits questionnaire from a VA physician, no medical opinion regarding his left leg disorder was provided. In the 2017 addendum opinion, the 2016 VA examiner, after a claims file review, opined that the Veteran's left leg disorder clearly and unmistakably existed prior to service and clearly and unmistakably did not increase in severity during service. The Board finds that the 2016 and 2017 VA examination opinions are the most probative evidence of record, as the examiner reviewed the claims file and provided detailed rationales. In the 2016 opinion, the examiner noted that the evidence indicated that he had atrophy and loss of muscle mass that was prior to service. The examiner indicated that the Veteran was hospitalized for the leg, but it was due to an infection. They noted that the damage to the muscle was determined to already have been done. The examiner opined that there was no indication that any treatment or activity in the service could have altered its natural course. In their 2017 addendum opinion, the examiner reiterated that, per records, the Veteran entered the military with a history of a significant ankle injury which required casting. They reported that it was also noted that the leg was significantly smaller than the other leg, indicating a preexisting atrophy. The examiner opined that even limited activity in the military would not worsen atrophy. They reported that in 49 days of enlistment, there would not be atrophy of the leg musculature. The examiner discussed the Veteran's pertinent service treatment records. As the 2016 examiner reviewed the claims file, and provided a detailed rationale specifically addressing whether the left leg disorder clearly and unmistakably existed prior to service and clearly and unmistakably did not increase in severity during service, the Board accords it significant probative value. As to the Veteran's own contentions, in addition to those lay statements from friends of the Veteran showing that he was capable of physical labor prior to service, they are competent to observe lay symptoms but do not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In summary, the preponderance of the evidence is against the claim for service connection for a left leg disorder, and the claim must be denied. 38 U.S.C. § 5107(b). C. Low back disorder In this case, the Board acknowledges the diagnosis of a current back disorder; a back disorder was first noted in August 1976 when a protruded lumbar disc was diagnosed. Spondylosis and degeneration of discs were diagnosed at an April 2015 VA back conditions examination. The Board has reviewed the service treatment records and notes no back treatment. No back disorder was shown in the medical board separation examination and physical. Given the above, the remaining question for the Board is whether there is an etiological relationship, or nexus, between the current disability and service. The Veteran described injuring his back during basic training at his March 2014 hearing. Evidence directly addressing the question of nexus is limited to the April 2015 examination report as well as a November 2016 VA back conditions examination report. The 2015 VA examiner, after a claims file review, opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The 2016 VA examiner, also after a claims file review, opined that the Veteran's lumbar spine condition developed years after the military and was less likely than not due to military service. Although the Veteran submitted a July 2017 disability benefits questionnaire from a VA physician, no medical opinion regarding his low back disorder was provided. The Board finds that the 2015 and 2016 VA examination opinions are the most probative evidence of record, as the examiners reviewed the claims file and provided detailed rationales. The 2015 examiner explained noted that the Veteran had poor memory and that real-time data entry was more accurate than statements made 30 years after the fact. The examiner reported that there was no mention of any back complaints in real-time nurse notes during service or any other real-time military notes. They noted that the Veteran reported seeking treatment in the 1970s, over four years post-discharge. The examiner also noted that the 1976 record showing a protruded disc made no reference to any back symptoms before then. The examiner discussed pertinent evidence, including lay statements showing that the Veteran had back pain after service. The examiner noted that the Veteran had normal sensory exam at discharge from service, while he had definite decrement in sensory exam findings in 1976, which clearly would be related to the back. They opined that even if the Veteran had in-military back pain, he clearly did not have any neurologic findings from the back, and did not have disc disease found ten years later when he had an abnormal sensory exam. They noted that the first findings of spondylosis were long after 25 years post-military, making it extremely unlikely to have been present within one year of service. The examiner concluded that the disc disease and spondylosis were clearly well after he left military, and the spondylosis was most likely age related. The 2016 examiner explained that there was no indication of any significant back condition or injury which was treated while in military. They noted that the Veteran claimed he was in the hospital for his Achilles and back, but the records indicated it was strictly for a leg infection. The examiner opined that if the Veteran had back issues while in the hospital, it was not considered a primary concern as that was not consistent with the records. They opined that it would certainly be possible to have some back pain and stiffness from being in the hospital for 50 days, but that would not indicate a cause for a chronic condition. As to the Veteran's own contentions, in addition to those lay statements from friends of the Veteran showing that he had back pain after service, they are competent to observe lay symptoms but do not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau, 492 F.3d at 1377. Indeed, under VA regulations, arthritis is a disease that is shown by x-rays. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. In summary, the preponderance of the evidence is against the claim for service connection for a low back disorder, and the claim must be denied. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for a left leg disorder is denied. Entitlement to service connection for a low back disorder is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs