Citation Nr: 18148041
Decision Date: 11/06/18	Archive Date: 11/06/18

DOCKET NO. 15-00 072A
DATE:	November 6, 2018
ORDER
Entitlement to service connection for a back condition, also claimed as spinal arthritis, is denied.
Entitlement to service connection for lumbar radiculopathy, claimed as numbness and stiffness in bilateral legs, is denied.
REMANDED
The issue of entitlement to service connection for bilateral chondromalacia patella, claimed as bilateral knee injury, is remanded.
The issue of entitlement to service connection for thrombosis in the left lower extremity, claimed as blood clot in left leg, is remanded.
The issue of entitlement to an evaluation for left foot calluses in excess of 10 percent is remanded.
The issue of entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety and worry, is remanded.

FINDINGS OF FACT
1. A back condition or spinal arthritis was not manifested during service or within a year of separation from service and is not shown to be related to active service.  
2. Lumbar radiculopathy in bilateral legs was not manifested during service and is not shown to be related to active service.  
CONCLUSIONS OF LAW
1. The criteria for service connection for a back condition, claimed as spinal arthritis, have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3102, 3.303, 3.307, 3.309.
2. The criteria for service connection for lumbar radiculopathy, claimed as numbness and stiffness in bilateral legs have not been met.  38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty with the United States Army from August 1978 to August 1981.
Service Connection
1. Back condition, also claimed as spinal arthritis
2. Lumbar radiculopathy, claimed as numbness and stiffness in bilateral legs
The Veteran alleges that his back began hurting on active duty; he relates this to running and other exercise, but does not report any specific injury or disease.  He also recalls reporting to sick call because of back symptoms.

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 
To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  
Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307; 3.309(a). Arthritis can be service-connected on such a basis. 
Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). 
Despite the Veteran’s recollections, service treatment records are absent complaints, findings or diagnoses of any back disability, or numbness or stiffness in the legs during service. The Veteran declined a separation examination in 1981, but he had a physical examination for the Reserve in 1984, where he did not make any complaints for his back or legs.  
Thus, there is no medical evidence that shows that the Veteran suffered from a back disability or lumbar radiculopathy in bilateral legs during service.
Further, the medical evidence of record indicates that the Veteran sought treatment at VA for the first time in December 2012 with complaints of back pain that had been lasting for 5 to 6 months and lower back pain which occasionally radiated down his legs as well as broken toes on the left foot incurred from a fall. The veteran reported in 2012 that the symptom of back pain started when he recently changed his job. In light of the absence of corroborated complaints in service, documented complaints many years after service, and contradictory reports regarding onset from the Veteran, the Board finds that service connection based on presumption or continuity is not available.  A back condition, and associated radicular symptoms, were not present in the first post-service year or for many years following separation.
When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). There must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). 
As the Veteran clearly has current disabilities, the sole remaining question, is whether there is medical evidence of a relationship between the current disability and military service.
No medical professional has ever related any of these conditions to the Veteran’s active duty service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). In this case, the medical evidence does not show treatment or diagnosis of these problems until a number of years after service. 
The Board must consider the Veteran’s own opinion that he has a back disability and lumbar radiculopathy which are related to his active duty service. His opinion is not competent.  The Veteran is not describing an observed cause and effect relationship.  He is reasoning and drawing conclusions, and he lacks the specialized training and knowledge to do so on the matter of nexus.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).
Thus, the record is absent competent evidence of a back disability and lumbar radiculopathy during service; competent evidence of arthritis of the lumbar spine within a year following service; credible evidence of continuity of symptomatology; and competent evidence of a nexus between the Veteran’s active duty service and diagnoses of degenerative arthritis of the lumbar spine and lumbar radiculopathy.  
Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a back disability and lumbar radiculopathy in bilateral legs; and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. 
REASONS FOR REMAND
1. Service connection for bilateral chondromalacia patella
The Veteran underwent a VA examination for his bilateral knee condition in December 2015. The examiner noted that the Veteran was diagnosed with bilateral chondromalacia patella in 1981 while in service. And the result of an x ray taken for the December 2015 VA examination indicates that the Veteran has patellar enthesopathy on the left knee. However, the examiner failed to evaluate whether patellar enthesopathy is etiologically related to in-service incidents of chondromalacia patella. 
Moreover, the Board finds that the nexus opinion provided in the examination is inadequate because it is merely based on the absence of medical records and thus it fails to provide sufficient medical reasons for the opinion.  
To rectify these deficiencies, an addendum medical opinion must be obtained.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990).
2. Service connection for thrombosis in left lower extremity
In a July 2016 VA Form 9, the Veteran asserts that his thrombosis is due to long periods of sitting, which is caused by the pain from his service-connected left foot calluses. A medical opinion is requested to ascertain etiology of deep vein thrombosis, to include whether it is related to any of his service-connected disabilities. Id.
3. Increased rating for left foot calluses in excess of 10 percent disabling
The Veteran last had a VA foot examination in December 2015. The Court of Appeals for Veterans Claims has held that when the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403; Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). As such, the Veteran should be scheduled for current VA examinations for his left foot calluses. Additionally, the latest VA medical records in the Veteran’s claims file are from October 2015; more recent records must be obtained upon remand.  
4. Service connection for an acquired psychiatric disorder, claimed as anxiety and worry
In a January 2013 VA mental health clinic visit, the Veteran stated that he was depressed in part because of his multiple medical problems. At that time, the medical problems reported to VA were chronic back pain, neuropathy, and history of toe fracture. However, since then, the Veteran has been treated and seeking service connection for other conditions, to include bilateral knees and thrombosis in the leg as mentioned above. Thus, the Veteran’s claim for service connection for a psychiatric disability is inextricably intertwined with the issues of entitlement to service connection for his knees and thrombosis, which are remanded for further development. Therefore, a final decision on the issue of entitlement to service connection for a psychiatric disability cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).
The matters are REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records for the period from October 2015 to the present.
2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral knee disorder, to include chondromalacia patellar and enthesopathy is at least as likely as not related to in-service occurrence of knee pain or disorder.  
3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of deep vein thrombosis in the left leg. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease.  
The examiner must also opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability.
4.Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left foot calluses. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to left foot calluses and discuss the effect of the Veteran’s left foot calluses on any occupational functioning and activities of daily living. 
5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder, to include depressive disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease.  
The examiner must also opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability.
6. If it is not possible to provide a specific opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
7. Readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order.

 
WILLIAM H. DONNELLY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Y. Taylor, Associate Counsel