Citation Nr: 18147593 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 14-18 211 DATE: November 6, 2018 ORDER Entitlement to service connection for degenerative disc disease (DDD), also claimed as lumbar spondylosis, is denied. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to DDD, is denied. FINDINGS OF FACT 1. The Veteran's degenerative disc disease, also claimed as lumbar spondylosis, was not present in service or for many years thereafter, and is not otherwise etiologically related to service. 2. The Veteran's radiculopathy of the right lower extremity was not present in service or for many years thereafter, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative disc disease, also claimed as lumbar spondylosis, have not been met. 38 U.S.C. §§ 1131; 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for radiculopathy, right lower extremity, have not been met. 38 U.S.C. §§ 1131; 5107(b); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1131. Service connection requires competent evidence showing: (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board notes that Veteran did not have 90 days of active service. Therefore, the chronic disease presumption does not apply in this case. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Degenerative Disc Disease The Veteran contends he injured his back as a result of a fall while on active duty. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, while the Veteran has a current diagnoses of degenerative disc disease and lumbar strain, and evidence shows that the Veteran slipped and fell on his hip while on active duty, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of DDD began during service or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service Treatment Records show that the Veteran was diagnosed with a severe acute muscle strain of the right hip, quadricep, and hamstring. As a result of this injury the Veteran had additional transitory pain in his lower and upper back. Current medical records indicate that the Veteran has current diagnoses of lumbar strain and degenerative disc disease. The Veteran's degenerative disc disease was first shown by imaging in January 2001. While finding that the Veteran’s lumbar strain was incurred during service, the August 2018 VA examiner determined that the Veteran's degenerative disc disease was not caused by his lumbar strain or otherwise by his active service. The VA examiner’s opinion is based on a thorough review of the entire claims file, a summary of which can be found in the opinion, and an examination of the Veteran. His rationale, that the objective evidence does not show that the lumbar strain could have caused the degenerative disc disease, is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board recognizes that in an April 2014 opinion of Dr. HG found that the Veteran’s lumbar degeneration was related to active duty. However, the Board finds that this opinion is less probative, as it fails to distinguish between the lumbar strain, a muscle injury, and degenerative disc disease, a joint injury. Dr. HG speculates that the Veteran suffered a lumbar joint injury when he fell and landed on his hip. This conclusion is not borne out by the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board finds the August 2018 VA examiner’s opinion more probative than the April 2014 opinion of Dr. HG. While the Veteran believes his DDD is related to an in-service injury or disease, including a fall during basic training, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between various muscle and joint groups. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner’s opinion. The Veteran alleges that the RO failed to comply with the Board’s remand directives pursuant to Stegall v. West, 11 Vet. App. 268 (1998). First, the Veteran asserted that the RO did not have a proper examiner perform the examination, as the Board’s December 2015 remand required. The Board notes that the December 2015 remand required a neurosurgeon or equivalent specialist. The Veteran, through his attorney, states that only a physician examined him. However, this is not supported by the reports. While it is true, that the examiner’s signature block merely states physician, on both the August 2018 examination and the August 2018 addendum opinion, one need only look one line above the examiner’s name to see that he is a board-certified neurologist. The Board finds that a neurologist is an equivalent specialist to a neurosurgeon, as both are competent to examine and diagnose neurological disorders. The Veteran, through his attorney, further alleges that the RO committed a Stegall violation by not discussing the August 2014 opinion of Dr. HG, as required by the Board’s December 2015 remand. However, the August 2018 examiner clearly discusses Dr. HG’s opinion, summarizing both the August 2014 and April 2014 opinions. See August 2018 VA Examination at 10. The Board notes that the examiner discussed in detail, numerous opinions and treatment records in addition to those specifically mentioned in the remand directive. Additionally, the Veteran alleges that the August 2018 opinion was inadequate as it was not based upon consideration of the Veteran's prior medical history and examinations. As noted above, the examiner discussed the Veteran's entire medical history. This is in stark contrast to the April 2014 opinion of Dr. HG. The April 2014 opinion of Dr. HG is based on the reports of the Veteran and is supported only by the physician’s conjecture about what likely happened. Whereas the August 2018 VA examiner’s opinion was based on an examination of the Veteran and a review of all the records in the case, including the positive opinion of Dr. HG, the Veteran's service treatment records, and copious post service records. The August 2018 VA examiner determined that the Veteran sustained a lumbar strain while on active duty, however, this strain did not cause the Veteran's DDD. Consequently, the Board finds the VA examiner’s opinion to be more probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 2. Radiculopathy, Right Lower Extremity As discussed in the previous section, the Board has denied entitlement to service connection for degenerative disc disease of the lumbar spine. As the Veteran is not currently service-connected for degenerative disc disease of the lumbar spine, secondary service connection for radiculopathy may not be established as a matter of law. See 38 C.F.R. § 3.310(a). However, radiculopathy can still be service connected on a direct basis. The Veteran claims that he injured his hip in a fall while on active duty and has had pain in his leg ever since. Following the Veteran's fall, he was diagnosed with a severe muscle strain of his right hip, quad, and hamstring. See Service Treatment Records at 40. An October 1983 VA examination found no radiculopathy. Both the July 2013 and August 2018 VA examiners found that the Veteran's right hip injury in basic training had no relation to his current nerve condition. The April 2014 opinion of Dr. HG only provided a secondary relationship for the Veteran's radiculopathy, stating that it was due to the Veteran's DDD. As such, no competent medical evidence has provided a direct relationship between the Veteran's fall in 1982 and his current radicular pain. While the Veteran believes his radiculopathy is related to an in-service injury or disease, including a fall during basic training, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between various joints and nerves. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical opinions of record. J. N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel