Citation Nr: 1802628 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-05 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for degenerative disc disease, multilevel lumbar spine with spinal stenosis at L2-L3 (arthritis), claimed as back condition, to include as a presumptively service-connected chronic condition. 2. Entitlement to service connection for a neurological condition of the lower extremities, including peripheral neuropathy or sciatica. REPRESENTATION Appellant represented by: African American PTSD Association WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1960 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board remanded this case in February 2017 to provide the Veteran with a hearing. The Veteran testified before the undersigned at an August 2017 hearing. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran was treated for back pain in service, and his statements regarding sleeping in the cold on the ground, riding in a large trucks, and lifting projectiles is consistent with his military occupational specialty. 2. The Veteran's currently diagnosed degenerative disc disease of the lumbosacral spine was first manifested many years after his and has not been medically related to his service. 3. The Veteran has not been diagnosed with peripheral neuropathy of the lower extremities, and his sciatic nerve diagnosis is related to his non-service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the lumbosacral spine, to include as a presumptively service-connected chronic condition, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for peripheral neuropathy of the lower extremities and sciatica have not been met. 38 U.S.C. §§ 1101, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's service treatment records (STRs) for November 1960 note treatment for stiff neck and back. There is no indication in the rest of the STRs that this complaint developed into a chronic condition. The STRs are silent for complaint, symptoms, or treatment of peripheral neuropathy of the lower extremities or other neurological symptoms. The Veteran's separation exam from July 1963 notes both spine and lower extremities as normal. The first record of back pain after the Veteran's separation from service is in 2003, after the Veteran hurt his back while lifting paint and equipment at his job. His arthritis was then diagnosed by MRI and he has been consistently treated for that condition since his diagnosis. However, nothing in his treatment records states that his arthritis was caused or aggravated by his active service. A private doctor in February 2004 stated that the 2003 work injury had aggravated preexisting arthritis, but did not state what that doctor thought had caused the arthritis. VA provided an examination in February 2010. The examiner did not have access to the claims file but did examine the Veteran and referred to some unspecified medical documents. The examiner agreed with the previous diagnosis of arthritis and suggested that the Veteran's symptoms were also consistent with spinal stenosis. However, he opined that the Veteran's current arthritis was less likely than not related to his military service. This opinion was based on the lack of continued documented symptoms in service after November 1960 and the lack of documented complaints for approximately forty years after his separation from service. The same examiner provided an addendum opinion in March 2010, after having a chance to review the Veteran's claims file. The examiner noted that the November 1960 complaint of stiff neck and back appeared to have resolved at the time with no sequela. The examiner therefore maintained his opinion that the Veteran's back condition was less likely than not related to military service and was more likely a result of the natural aging process' wear and tear on the lumbar spine. The record contains three lay statements submitted in support of the Veteran by his wife, his friend, and his neighbor, respectively. His wife's statement contained her observation of his constant back pain "over the course" of their marriage. No specific dates were mentioned. The neighbor's statement contained the neighbor's observations of the Veteran suffering from back pain, but did not mention any dates. The friend's statement, written in February 2010, indicated that the Veteran's back pain had been an observable problem for the past four years. The Veteran has stated in writing, to doctors, and at his hearing, that his back has hurt since his active service. He believes that this was caused by having to sleep in the cold on the ground, having to lift heavy artillery shells, and travelling in the back of bouncing trucks with no cushioning. He also stated that he saw a doctor from 1964 through the 1970s, but that this doctor has passed away and he has been unable to get any records. The Veteran did not indicate any specific diagnosis given by this doctor and states that he was treated with heat, pain medication, and creams. He has also occasionally described his back pain as radiating into his hips, especially on the right side. I. Arthritis The Veteran is seeking service connection for degenerative disc disease of the lumbosacral spine, also known as arthritis, including as a presumptively connected chronic condition. As the Veteran's treatment records contain an MRI confirming his diagnosis of arthritis, the presence of a current disability is shown. A. Direct Service Connection While the Veteran has been diagnosed with arthritis from 2003 to the present, the record does not support the Veteran's claim of direct service connection. For VA purposes, a diagnosis of arthritis must be confirmed by x-ray. 38 C.F.R. § 4.71a, DC 5003. The Veteran's first x-ray diagnosis did not come until nearly forty years after his separation from service. The Veteran has stated that his back hurt in service, but does not claim to have been diagnosed with any specific back condition during service. The STR noting a complaint of stiff back in November 1960 did not provide a diagnosis or note any residuals, and the rest of the Veteran's STRs are silent for complaint, symptoms, or treatment of any back condition. The Veteran did not report any back problems on his separation exam. In fact, he specifically denied swollen or painful joints, arthritis, and lameness. All of these factors weigh against a finding that the Veteran's arthritis was incurred in or aggravated by service. The only evidence in support of the Veteran's claim that his arthritis began in service is his statement that his back has hurt since that time and he believes this was caused by service. The three lay statements all support his claims of current arthritis but do not address his time in service. The Board has no reason to disbelieve the Veteran about his symptoms, but as a layperson, he is not qualified to self-diagnose arthritis or relate it to specific incidents. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Simply put, not all back pain is caused by arthritis, or leads to arthritis, and the VA examiner's opinion, supported by the facts noted above and a review of the claims file, is that this Veteran's current arthritis is the result of the natural aging process and not related to his military service. This does not mean that the Veteran did not have back pain before he had arthritis; rather, it means that the evidence in the record does not support his claim that his earlier back pain was caused by his currently diagnosed arthritis or led to it. The Board finds that the VA examiner's opinion is the most probative evidence of record addressing the question of whether or not the Veteran's arthritis was incurred in or aggravated by service. The examiner reviewed the claims file, examined the Veteran, provided an opinion, and included a rationale that was consistent with the evidence of record. The other opinion contained in the claims file is that of the Veteran. While he asserts that his arthritis was caused by sleeping on cold ground, lifting heavy artillery, and bouncing in uncushioned trucks, the Board finds that the opinion provided by the VA examiner is afforded more probative weight than the Veteran's assertions. The VA examiner has experience, expertise, and medical training that the Veteran, as a layperson, is not shown to have. As such, his opinion is afforded significant weight, and it is the most probative evidence of record. The Board finds that the balance of the evidence is against the Veteran's claim of direct service connection for his arthritis. B. Chronic Condition As arthritis is a chronic condition listed in 38 C.F.R. § 3.309(a) it is presumed to be service-connected if the evidence shows that it manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309 (2017). A compensable rating for the Veteran's arthritis would require evidence showing: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DC 5242 (2017). In the alternative, evidence of continuity of symptomatology after service may establish the occurrence of an event in service and/or a causal nexus between that event and the Veteran's current arthritis. The Veteran left service in 1963 and was not diagnosed with arthritis until 2003, approximately forty years later. Before 2003, the medical record is silent for any testing of the Veteran's spinal flexion or range of motion. The Veteran has stated that his back hurt after his separation from service but he did not mention any limited range of motion, muscle spasms, guarding, or tenderness of specific areas. Current imaging tests have not shown evidence of any past vertebral fracture. While the Veteran has stated that he sought medical treatment for his back pain in 1964, VA has been unable to obtain records of this treatment and the Veteran has not claimed that this doctor diagnosed arthritis at the time or identified any of the above symptoms. The Board finds that the most probative evidence of the Veteran's symptoms for the year after leaving service are his statements that he suffered from back pain and treated it with heat and pain medication. He testified that he believed he first got treatment in 1965, but otherwise, he had a family to support and needed to work, so he did. These statements about his back pain after service alone are not sufficient to establish that he had begun to develop arthritis in his back at that time, especially given the evidence of the initial diagnosis not happening until 2003. The Board therefore finds that the balance of the evidence is against the Veteran's claim of presumptive service connection for arthritis as a chronic condition manifesting to a compensable degree within one year of separation from service. As discussed above, the Board assigns great probative weight to the VA examiner's opinion that the Veteran's in-service report of a stiff neck and back was an acute issue that resolved in service without residuals and is not related to the Veteran's current arthritis. The Board notes the Veteran's opinion that the two are related, but again notes that because the Veteran does not have any medical training and is not qualified to diagnose his own arthritis his opinion must be given less weight than that of the VA examiner. Following the VA examiner's opinion, the Board finds that the Veteran's arthritis was not noted in service. The Board therefore finds that the balance of the evidence is against the Veteran's claim that continuity of symptomatology can be used to show an in-service event or injury related to his current arthritis. As the Board has found that the balance of the evidence weighs against the Veteran's claim of both direct and presumptive service connection for his arthritis, this claim must be denied. II. Peripheral Neuropathy of the Lower Extremities The Veteran has complained of his lower back pain radiating down to his thighs, especially on the right side. His STRs are silent for complaint, symptoms, or treatment for this condition. A private treatment record dated July 2007 noted lumbar radiculopathy and a record dated August 2008 noted "neuro deficits." The VA examination from February 2010 showed no neurological deficits. The peripheral nerve examination showed 5/5 strength for quadriceps, hamstrings, dorsiflexion, and plantar flexion. The Veteran had good sensation throughout with 2+ symmetrical deep tendon reflexes of the patellar and Achilles tendon bilaterally. Straight leg raising was negative. The examiner did not diagnose peripheral neuropathy or any similar condition. A private record from April 2010 noted leg weakness in addition to pain, but a record from May 2010 noted that this had resolved. Other than claiming the condition on his application for benefits, the Veteran himself has not made any statement in support of his claim for this condition. A review of all evidence submitted does not show that the Veteran has been diagnosed with peripheral neuropathy. To the extent that the Veteran stated peripheral neuropathy but intended to mean his sciatica, which is documented in the record, that has been specifically related to his non-service-connected back disability. Therefore, the Board therefore finds that the balance of the evidence is against the Veteran's claim of service connection for this condition. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for degenerative disk disease, multilevel lumbar spine with spinal stenosis at L2-L3 (arthritis), claimed as back condition, is denied. Entitlement to service connection for peripheral neuropathy and sciatica of the lower extremities is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs