Citation Nr: 18140124 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 07-10 476 DATE: October 2, 2018 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for sciatica of the left leg, to include as secondary to a low back disability, is denied. Entitlement to service connection for sciatica of the right leg, to include as secondary to a low back disability, is denied. FINDINGS OF FACT 1. The evidence shows that the Veteran’s current low back disorders were not caused or aggravated by service-connected disability and are not otherwise related to service. Degenerative arthritis of the spine did not manifest in service or within the one-year presumptive period. 2. The evidence shows that the Veteran’s current left and right sciatica were not caused or aggravated by service-connected disability and are not otherwise related to service. Sciatica did not manifest in service or within the one-year presumptive period. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for establishing entitlement to service connection for a sciatica of the left leg have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for establishing entitlement to service connection for sciatica of the right leg have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id; see also 38 C.F.R. § 3.310(b). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis and other organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran in this case contends that his current low back disorder was directly incurred in service or, alternatively, is secondary to altered gait due to service-connected bilateral foot and ankle disabilities. He contends that sciatica is secondary to the low back disorder or, alternatively, directly due to service. The evidence shows that the Veteran has current diagnoses of lumbosacral strain and degenerative arthritis of the lumbar spine, as well as left and right sciatica. The Veteran served on active duty from July 1973 to December 1974. Service treatment records show that in August 1973 he complained of low back pain for one week; physical examination revealed no spasm, full range of motion and no radiation. An October 1974 separation examination revealed normal spine and lower extremities on clinical evaluation. In December 2005, the Veteran submitted a claim for service connection for a low back disorder and sciatica, noting that he had been treated for low back pain in 1973. The Veteran was afforded a VA examination in March 2006. The examiner noted documented treatment during service for symptoms in the low back and lower extremities, as well as currently diagnosed disabilities. The examiner further noted the Veteran’s subjective complaints of pain continuously since service, and that he reported post-service treatment for his low back condition and sciatica symptoms in the lower extremities since 1983. However, the examiner opined that she could not give an opinion as to whether the claimed disabilities were related to service without resorting to speculation because it was not in the medical literature and there was no documented treatment for any of the conditions since separation from service. Accordingly, in November 2010, the Board remanded the appeal to first obtain outstanding treatment records and then obtain a VA examination to address the etiology of the Veteran’s low back disability and sciatica. Although VA examinations for the back and sciatica were obtained in December 2010 and January 2011, respectively, these occurred before the outstanding treatment records were associated with the claims file. In addition, the January 2011 opinion was unclear as the examiner discussed the Veteran’s back, feet, and ankle disabilities generally together without addressing the specific medical history of each claimed disability or the Veteran’s statements as to the onset of symptoms and prior treatment. The December 2010 examiner found that there was insufficient objective evidence to warrant the diagnosis of an acute or chronic low back disorder or residuals thereof despite the March 2006 VA examiner having provided a diagnosis of lumbar strain. Accordingly, in October 2013, the Board again remanded the appeal to obtain outstanding records and for another VA etiological examination. Although another negative VA examination addressing the back and lower extremities was obtained in December 2013, the examiner there failed to address the Veteran’s lay history describing ongoing pain since service. Accordingly, in July 2014, the Board found that another examination was warranted. In addition, since the Board had granted service connection for bilateral foot and ankle disabilities in the same decision, the Board directed that the examination address whether the Veteran’s low back disability had been caused or aggravated by his service-connected bilateral foot and ankle disabilities, to include as due to any alteration of his gait resulting from such disabilities. The Veteran underwent another VA examination in November 2014 where the examiner opined that the Veteran’s low back disorder was not directly related to service. In a December 2014 addendum, the examiner added that the low back disability was not secondary to service-connected ankle and foot disabilities. In April 2015, following another VA examination, a different VA examiner opined that the Veteran’s low back disorder and sciatica were not directly related to service and the low back disorder had not been caused or aggravated by service-connected foot or ankles disabilities. In November 2015, however, the Board remanded the appeal for an addendum opinion, finding that the 2014 and 2015 opinions had failed to adequately address the Veteran’s lay statements indicating that he had experienced pain since service. In a January 2016 addendum opinion, the April 2015 examiner again opined that the Veteran’s low back disorder was not related to service or to service-connected foot and ankle disabilities and that his sciatica was not related to service. In a March 2016 addendum, the same examiner added that the sciatica was not secondary to service-connected foot and ankle disabilities. In April 2017, the Board observed that neither opinion adequately considered the Veteran’s complaints of continuous low back symptoms or discussed the post-service findings of a limping gait due to his service-connected foot and ankle disabilities, and therefore the Board sought a medical expert opinion from the Veterans Health Administration (VHA) to again address the etiology of the Veteran’s current disabilities. In June 2017, a VA doctor opined, after reviewing the claims file, that it was less likely as not that the Veteran’s current lumbosacral strain and degenerative arthritis and associated sciatica onset inservice or were otherwise etiologically related to his active service, to include an August 1973 complaint of low back pain. The examiner observed that recent medical literature had shown that exposure to back injury was not associated with increased back disc degeneration, which also supported the prior VA opinions finding no direct link between the Veteran’s current low back disorder and service. The examiner also concluded that it was less likely as not that the Veteran’s current lumbosacral strain and degenerative arthritis had been caused or aggravated by service-connected bilateral foot and ankle disabilities because degenerative disc disease is not a disease but a natural occurrence that comes with aging, which was also supported by recent medical literature which found that degenerative disc disease was associated with a genetic predisposition rather than injury or trauma. In addition, the examiner noted that the Veteran had a normal separation examination without relevant findings and that although his reports of continuous low back pain since service were considered credible, there are a myriad of reasons for low back pain, none of which in this case appeared to be related to service. In February 2018, the Board requested another expert medical opinion from the VHA. The Board observed that although the June 2017 examiner’s rationale addressed the etiology of the Veteran’s degenerative arthritis, it did not specifically address his lumbosacral strain. The Board also requested clarification as to whether the examiner’s statement that degenerative arthritis was secondary to service-connected foot and ankle disabilities. In April 2018, a different VA doctor opined, after reviewing the claims file, that it was less likely as not that the Veteran’s lumbosacral strain, degenerative joint disease and arthritis, as well as his sciatica, were related to service. She noted that she agreed with the previous VA examiners who found that there was no evidence of a back condition during the Veteran’s service. Although she conceded that the Veteran had credibly claimed continuous low back pain since service, she observed that low back pain is a symptom and does not point to any specific diagnosis. She further noted that lumbosacral strain is a self-limited condition and not one that continues for decades. Although degenerative joint disease of the spine can cause pain over a long period of time, there was no evidence of this condition during service, nor was there such evidence of sciatica. Finally, she concluded that it was less likely as not that the Veteran’s currently diagnosed low back disability had been aggravated by service-connected foot and/or ankle disabilities because such disabilities are not typically caused or aggravated by the foot and ankle conditions the Veteran is service-connected for. Based on the above, the Board finds that a preponderance of the evidence is against the claims. Indeed, although service treatment records reveal complaints of low back pain during service, no disability was diagnosed and clinical evaluation at separation was normal. As to lumbar arthritis, the June 2017 examiner noted the August 1973 complaint of low back pain and specifically noted that he found the Veteran’s reports of continuous low back pain since service to be credible, but found that when applying current medical literature and principles to the facts of this case, it was less likely as not that the lumbar arthritis was directly related to service. As to lumbosacral strain, the April 2018 examiner similarly stated that she found the Veteran’s reports of continuous low back pain since service to be credible but found that because lumbosacral strain is a self-limited condition and not one that continues for decades, it was less likely as not that the Veteran’s current lumbosacral strain was directly related to service. As to whether a low back disorder was secondary to altered gait due to service-connected foot and/or ankle disabilities, the June 2017 examiner indicated that degenerative arthritis was a natural occurrence that occurred with aging and not altered gait, and the April 2018 examiner clarified that neither low back disorder had been caused or aggravated by service-connected foot or ankle disabilities because there was no medically-recognized causal relationship between those disabilities. As to sciatica, both examiners concluded it was less likely as not that it was directly related to service, noting that the separation examination was normal. As both opinions were offered by medical professionals following a review of the claims file and application of relevant medical principles to the facts of this case, with rationales consistent with the evidence of record, the Board affords each significant probative value with respect to each theory addressed above. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). To the extent either examiner failed to fully support every aspect of any of each conclusion, it is clear that both had a complete understanding of the pertinent evidence, reviewed the entire claims file and considered the appellant’s contentions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In this regard, both examiners specifically stated that they found the Veteran’s reports of continuous low back pain since service to be credible and both referenced the relevant evidence in the claims file, to specifically include the in-service complaint of low back pain. Regarding the April 2018 examiner’s statement that she agreed that there was no evidence of a back condition during service, in the context of the opinion, it is reasonable to interpret this to mean that there was no diagnosed disability during service – not that there were no complaints of low back pain during service; again, she explicitly conceded that the Veteran had credibly reported low back pain beginning in service. See Acevedo, 25 Vet. App. at 294. Significantly, there is no contrary opinion. While the Veteran has offered his opinion that his current low back disorders and associated sciatica are related to service or that his low back disorders are secondary to service-connected foot and ankles disabilities, his statements regarding the cause of his low back disorders and associated sciatica are lay statements that purport to provide a nexus opinion. The Board finds the Veteran’s statements not competent for this purpose. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. In the instant case, the question of the cause of the low back disorders and associated sciatica is not something that can be determined by mere observation. Nor is this question simple. While the Veteran is competent to report back and leg pain, the question of the cause of that pain is not an observable fact. It requires clinical testing to assess and diagnose the underlying condition and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported to determine the cause. Therefore, the Board finds that the Veteran’s statements as to how his low back disorders and associated sciatica were caused are not competent evidence as to a nexus. The competent and most probative evidence of record are the June 2017 and April 2018 VA opinions as discussed, and for reasons described, above. While the Board finds that the Veteran is competent to report continuous low back pain since service, and the Board finds his statements to be credible, the Board finds the probative value of these statements outweighed by the June 2017 and April 2018 opinions, particularly given that both examiners also considered the Veteran’s statements to be credible. In sum, the most probative evidence of record shows that the current low back disorders and associated sciatica were not incurred in service and were not caused or aggravated by service-connected foot and ankle disabilities. Further, neither degenerative arthritis of the spine nor sciatica were compensably disabling within one year of separation from service. 38 C.F.R. § 3.309(a). The Board also observes that the most probative evidence indicates that degenerative arthritis of the spine and sciatica did not exist and were not “noted” in service or within one year of separation from service. Thus, the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity or continuity of symptomatology are not for application. (Continued on the next page)   Accordingly, the claims must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. 38 U.S.C. § 5107. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel