Citation Nr: 18147517 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 14-20 572 DATE: November 5, 2018 ORDER Service connection for lumbar back sprain with residual spondylosis is denied. Entitlement to compensation under 38 U.S.C. 1151 for Hepatitis B is denied. REMANDED Service connection for right hip arthritis is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar back sprain with residual spondylosis did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran did not sustain a permanent, chronic, additional disability of Hepatitis B as a result of VA treatment in August 2008, including carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA, or an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar back sprain with residual spondylosis have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for compensation under 38 U.S.C. § 1151 for Hepatitis B have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.10, 3.361, 17.32. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from June 1990 to October 1992. The issues are on appeal from a June 2013 rating decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as spondylosis (arthritis), are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if “the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.” Savage v. Gober, 10 Vet. App. 488, 498 (1997). 1. Service connection for lumbar back sprain with residual spondylosis (back condition) The Veteran contends that his back condition is due to lifting a heavy tank tow bar during service. Medical records showed that the Veteran was diagnosed with a back condition. Thus, the requirements of Shedden element (1) have been met. The question before the Board of Veterans’ Appeals (Board) is whether the Veteran’s claim satisfies the requirements of Shedden elements (2) and (3). The Board finds it does not. Service treatment records showed multiple complaints of and treatment for recurrent back pain. Notably, one undated Master Problem List record listed low back pain as a temporary and minor problem, with an occurrence date of October 1991. An October 1992 Report of Medical History showed that the Veteran denied recurrent back pain. VA treatment records from April 2003 to May 2013 showed complaints of and treatment for back pain, which included undergoing physical therapy and obtaining a back brace. A February 2012 MRI showed mild degeneralized disc bulge, bilateral facet hypertrophy, and mild bilateral foraminal narrowing at L4-5; and retrolisthesis of L5 on S1 which caused uncovering of the disc and mild bilateral facet hypertrophy at L5-S1. In May 2013, the Veteran was afforded a VA Examination. He was diagnosed with lumbar back sprain with residual spondylosis. The examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by his service. As rationale, the examiner stated that the Veteran’s service treatment records did not contain documentation of back complaints or injuries; and that the mild degenerative arthritis as shown on x-ray was more likely related to the normal aging process. Further, the examiner wrote that the degree of pain and the chronic nature of the Veteran’s back condition was out of proportion to his history of any back trauma or mild arthritis. The Board notes that the examiner was incorrect when discussing the Veteran’s service treatment records because, as stated above, there are multiple complaints of and treatment for back pain in the Veteran’s service treatment records. Private treatment records from a physical therapist between September 2014 to January 2016 showed that the Veteran underwent treatment for his back. However, no etiological opinion was stated. In November 2015, the Veteran underwent a MRI of his lumbar spine. Degenerative disc disease was found at L4-5 and L5-S1 with a central and left L5-S1 disc herniation. In May 2018, the Veteran was afforded another VA examination. He was diagnosed with lumbosacral strain and degenerative arthritis of the spine. The examiner opined that the Veteran’s back condition was less likely than not related to service because the low back pain noted in his service treatment records were acute only. Additionally, there was no evidence of chronicity of care and a nexus had not been established. The Board finds that a preponderance of the evidence is against the finding of a nexus to service. First, there is no evidence that spondylosis was diagnosed in service or within one year of discharge to warrant presumptive service connection for a chronic condition. Full consideration has been given to the Veteran’s assertions that he has had ongoing back pain since service. The Veteran is competent to report that which he has personally experienced, such as pain in his low back. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board does not find the Veteran’s reports of ongoing pain to be credible. The first evidence of treatment for a back disability was in July 2008, over 15 years after service-discharge. Such weighs against a finding of continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (allowing the Board to consider “evidence of a prolonged period without medical complaint”). Additionally, at that time, it was noted that his low back pain was likely musculoskeletal in origin, and that there was no evidence of sacroiliitis or rheumatoid arthritis. The Board further finds that the evidence is against direct service connection. The Veteran’s service treatment record showed that the Veteran denied recurrent back pain in October 1992. Attention is also given to the May 2018 VA examiner’s opinion that the Veteran’s back condition was unrelated to service after a thorough review of the claims file, taking a history from the Veteran, and an examination. He stated that the Veteran’s back pain during service was acute in nature. The Board has considered the Veteran’s contentions that he has a back condition that is related to his period of active service. However, as to the specific issue in this case, the question of the etiology of the Veteran’s back condition falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Spondylosis is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, the Veteran’s comments are afforded no probative weight. In sum, there is no competent or credible evidence of a back condition in service, no credible evidence of the condition for over a year after service discharge, and no competent evidence linking a back condition to service. As the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection for a lumbar spine disability must therefore be denied. 2. Entitlement to compensation under 38 U.S.C. 1151 for Hepatitis B The Veteran contends that he was diagnosed with Hepatitis B after he underwent treatment including a blood draw, colonoscopy, and endoscopy at Roudebush VA medical center (VAMC) in August 2008. A Veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the Veteran’s willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). In determining whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran’s condition after the care or treatment is rendered. The additional disability or death must not have been due to the Veteran’s failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To satisfy the first prong of proximate causation, it must be shown that the VA hospital care, medical or surgical treatment, or examination caused the Veteran’s additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. The second prong of proximate causation requires that the Veteran’s additional disability or death be an event that was not reasonably foreseeable. This fact is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of the event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures outlined in 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The first question that must be answered with regard to these claims is whether the Veteran has an additional disability as a result of his VA treatment. The Veteran’s treatment record showed that he had blood drawn, and underwent an upper GI endoscopy and colonoscopy on August 2008. The Veteran was diagnosed with Hepatitis B in 2010. In March 2018, the Veteran was afforded a VA examination. The examiner opined that it was less likely than not that the Veteran’s Hepatitis B was caused by his VA treatment in August 2008. Upon review of the record, the examiner explained that sterile techniques were followed and there were no inadvertent needle sticks or use of blood products. Hepatitis B is transmitted by infected blood, sexual transmission, and from an infected mother to infant during birth. Therefore, there was no mode for transmission of Hepatitis B to the Veteran during his VAMC procedures. Further, the examiner stated that liver enzyme tests from 2003, 2008, and 2009 were normal with no evidence of an acute Hepatitis B infection. It was not until 2010 when the Veteran was found to have elevated liver enzymes and was ultimately diagnosed with Hepatitis B. Thus, the evidence does not reveal that the Veteran sustained an additional disability as a result of VA treatment in August 2008. There is no medical evidence showing that the Veteran’s blood draw, endoscopy, and colonoscopy caused his Hepatitis B. The March 2018 examiner explained that Hepatitis B was transmitted by infected blood, sexual transmission, and from an infected mother to infant during birth. As sterile techniques were used, and there was no inadvertent needle sticks or use of blood products in August 2008 when treating the Veteran, Hepatitis B could not have been transmitted to the Veteran. Accordingly, the competent and probative evidence does not establish that the Veteran sustained a permanent, chronic, additional disability of Hepatitis B as a result of VA treatment in August 2008. Thus, the appeal for benefits pursuant to 38 U.S.C. § 1151 is denied. REASONS FOR REMAND Service connection for right hip arthritis is remanded. The Board notes that the Veteran has claimed his right hip condition as secondary to his back condition. As stated above, the Veteran’s service connection claim for a back condition has been denied. However, as the Veteran may still receive compensation under a direct service connection theory, the Board finds that a remand is necessary for the following reasons. Per the December 2017 Board remand, the Veteran was afforded a VA examination in May 2018 as the etiological opinion in a prior May 2013 VA examination was not supported by a well-reasoned medical rationale and therefore was not probative. The May 2018 examiner found that the Veteran had no right hip condition and opined that a right hip condition would be less likely than not related to service as there was no evidence of complaints, medical evaluation, or treatment of the right hip following parachute jumps or lifting the bar of a tank. Further, she stated that the Veteran had never been diagnosed for a right hip condition, which is incorrect as the May 2013 examiner diagnosed the Veteran with right hip arthritis. Further, a November 2015 Neurology EMG report showed that there was evidence of chronic right L5 radiculopathy. Therefore, the Board finds the examination is not wholly adequate. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Due to the conflicting diagnoses as it pertains to the Veteran’s right hip condition, and the reliance on incorrect facts when forming an etiology opinion, the Board finds that a new examination is warranted in order to ensure that the record reflects whether the Veteran has a right hip condition, and whether it is etiologically related to service. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a right hip condition. If a right hip condition is diagnosed after conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right hip condition had its onset in service or is otherwise related to his military service. 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel