Citation Nr: 18154550 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 13-30 047 DATE: December 4, 2018 ORDER Entitlement to service connection for a low back disability, to include as secondary to service-connected right knee strain, is denied. REMANDED The issue of entitlement to service connection for a right hip disabilitiy, to include as secondary to service-connected right knee strain, is remanded. The issue of entitlement to service connection for right carpal tunnel syndrome (claimed as numbness, tingling and stiffness) is remanded. The issue of entitlement to service connection for left carpal tunnel syndrome (claimed as numbness, tingling and stiffness) is remanded. FINDINGS OF FACT 1. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has a low back disability etiologically related to an in-service injury, event or disease. 2. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has a low back disability proximately due to, or chronically aggravated by, his service-connected right knee strain. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability, to include as secondary to service-connected right knee strain, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 2001 to February 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In February 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This case was previously remanded by the Board in September 2017. The case has been returned to the Board for review. 1. Entitlement to Service Connection for a Low Back Disability The Veteran contends that he has a low back disability that is directly related to his active service or secondary to his service-connected right knee strain. Specifically, the Veteran testified that he fell fifteen feet while transferring from a large ship to a smaller ship. He further testified that this fall caused his current low back disability. See, e.g., February 2017 Board hearing transcript. To establish service connection for a disability on a direct-incurrent basis, the 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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. The evidence of record shows that the Veteran was diagnosed with lumbar degenerative disc disease in January 2014. See January 2014 VA treatment record. Therefore, there is evidence of a current disability. As to an in-service event, injury or disease, the Veteran’s service treatment records reveal that the Veteran fell fifteen feet during his active service and suffered “jamming injuries”. Accordingly, there is also evidence of an in-service event in the form of falling fifteen feet, and the issue remaining for consideration as to direct service connection is whether the Veteran’s current lumbar degenerative disc disease is etiologically related to the in-service event. In determining whether the record reflects that the Veteran’s current lumbar degenerative disc disease is related to his active service, the Board acknowledges the Veteran’s belief that there is such a causal connection. The Board notes that the Veteran is competent to report the onset and continuity of symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, it is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of lumbar degenerative disc disease is not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay testimony is not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current lumbar degenerative disc disease had its onset during active duty does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of lumbar degenerative disc disease. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Therefore, his statements do not constitute competent evidence that may be probative in showing an etiological relationship between the in-service event and the current low back disability. To determine whether such a relationship exists, the Board turns to the competent medical evidence of record. With respect to a nexus between the Veteran’s current low back disability and in-service event, the Board notes that the record contains conflicting medical opinions. The United States Court of Appeals for Veterans Claims has stated that the probative value of medical opinion is based on the expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In favor of a finding of a nexus is a December 2015 VA treatment record. The VA treatment record reflects a diagnosis of degeneration of lumbar interverbal disc and an opinion that the Veteran’s back pain is “likely from his injury in 2005/6.” The record further notes that the Veteran “may very well have” injured his back at that time, which is contributing to his back pain. The Board notes that the December 2015 nexus opinion is equivocal, as it stated only that the present disability is “likely” from the in-service event and that the Veteran “may very well have” injured his back during the in-service event, and thus does not provide an adequate rationale; therefore, the Board affords relatively little probative weight to December 2015 opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Against a finding of a nexus is the March 2018 VA opinion. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted the Veteran’s current diagnosis of lumbar degenerative disc disease. The Veteran stated that his back pain began after service in approximately 2007 or 2008. The Veteran further stated that the onset of back pain is associated with his right leg injury that occurred in service. The VA examiner opined that the Veteran’s current low back disability is less likely than not related to the fall during the Veteran’s active service. As rationale, the VA examiner noted that at the time of the fall the Veteran did not demonstrate any low back symptoms. Additionally, no abnormalities to the lumbar spine were noted on the separation examination, thus there is no evidence that the condition began during the Veteran’s active service. As stated above, the December 2015 VA treatment opinion is equivocal and is not supported by adequate rationale. On the other hand, the March 2018 VA examiner’s opinion, that the Veteran’s current lumbar degenerative disc disease is not related to his active service, is based on a thorough review of the Veteran’s claim file. The opinion is supported by rationale demonstrating medical knowledge and judgment, as well as an understanding of the Veteran’s current low back disability. In short, the Board finds the March 2018 VA examiner’s opinion to be more probative. The Board has also considered whether the Veteran is entitled to service connection for lumbar degenerative disc disease as a “chronic disease.” See 38 C.F.R. § 3.303 (b). Arthritis is included in the list of “chronic” diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with lumbar degenerative disc disease in January 2014, eight years after his separation from active service. However, the Veteran has not argued, and the record does not show, that he was diagnosed with arthritis or any other “chronic” disease listed under 38 C.F.R. § 3.309 (a) during service or within one year of separation from service. Therefore, service connection is not warranted on a presumptive direct-incurrence basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. The Board has also considered whether the Veteran’s current lumbar degenerative disc disease is secondary to his service-connected right knee strain. A disability which is proximately due to, or chronically aggravated by, a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). With respect to whether the Veteran’s current lumbar degenerative disc disease is secondary to his service-connected right knee strain, the only competent medical opinion of record is the March 2018 VA examination and opinion. The VA examiner opined that the Veteran’s diagnosed degenerative disc disease of the lumbar spine is less likely than not proximately due to or the result of his service-connected right knee strain. As rationale, the VA examiner stated that the evidence does not support a causative association between the service-connected right knee strain and low back. The VA examiner further stated that the degenerative findings are consistent with age-related findings and that the Veteran was not able to describe any mechanism that would show a connection between his service-connected right knee strain and his current low back disability. The VA examiner also opined that the Veteran’s low back disability was not at least as likely as not aggravated beyond its natural progression by his service-connected right knee strain. As rationale, the VA examiner stated that there is no objective evidence linking the two conditions and that the Veteran’s service-connected right knee strain does not appear to have resulted in any alteration of posture, gait, or any other factors which would aggravate his lumbar spine condition. The Board finds that the March 2018 VA examiner’s opinions are due great probative value. The VA examiner provided the opinions based on an accurate understanding of the Veteran’s medical history, on the examiner’s own knowledge and expertise, and on an examination of the Veteran. Furthermore, the VA examiner provided rationale that explains the conclusions and gives insight into the medical aspects of the Veteran’s current low back disability. See Nieves- Rodriguez, 22 Vet. App. at 295. The Board accepts the VA examiner’s opinions as probative evidence. As such, the preponderance of the evidence is against a finding that the Veteran’s current low back disability is caused by, proximately due to, or aggravated by, his service-connected right knee strain. In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran’s current lumbar degenerative disc disease and his active military service, nor is the low back disability at issue proximately due to, or chronically aggravated by, his service-connected right knee strain. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). REASONS FOR REMAND 1. Entitlement to Service Connection for a Right Hip Disability The Veteran contends that he has a current right hip disability that is directly related to his active service or secondary to his service-connected right knee strain. In its September 2017 remand, the Board directed the AOJ to provide the Veteran a VA examination to determine whether the Veteran’s current right hip disability is related to his active service or secondary to his service-connected right knee strain. The Veteran was provided a VA examination related to his right hip disability in March 2018. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted that the Veteran fell in 2005 during his active service, which caused his right lower extremity to go numb. The VA examiner further noted that the Veteran was provided a right hip x-ray in October 2012 that showed no fracture or acute bony pathology. The VA examiner diagnosed the Veteran with femoral acetabular impingement syndrome. The VA examiner opined that the Veteran’s current right hip disability was not caused by the in-service fall nor secondary to his service-connected right knee strain. As rationale, the VA examiner stated that the Veteran’s right hip disability has a congenital etiology and thus there is no medical connection to the Veteran’s in-service fall or his service-connected right knee strain. However, the Board is not clear as to the basis for the VA examiner’s finding that the Veteran’s current right hip disability has a congenital etiology. The VA examiner appears to state that the Veteran’s femoral acetabular impingement syndrome is congenital or developmental, but the examiner does not state whether the condition is a disease or defect. Defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). Congenital or developmental “defects” automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303 (c). However, service connection is generally precluded by regulation for such “defects” because they are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). VA’s Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary disease, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGPREC 67-90. The General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is “more or less stationary in nature”, while a disease is “capable of improving or deteriorating.” See VAOPGCPREC 82-90 at para. 2. In this regard, the presumption of soundness does not apply to congenital defects because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303 (c). However, a congenital defect can still be subject to a superimposed disease or injury during active service. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. Here, if the Veteran has a right hip condition, femoral acetabular impingement syndrome, that is indeed congenital, medical evidence is required to determine whether such condition is a congenital or developmental defect or a congenital disease. If it is a disease, findings must be made as to whether it was aggravated by his period of active service beyond its natural progression. If a defect, findings must be made as to whether there are any superimposed diseases or injuries in connection with the congenital defect and if so, whether the superimposed disease or injury is related to the Veteran’s active service. The March 2018 examination is inadequate, as it did not address these issues. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Thus, the Board finds a remand is warranted in order to afford the Veteran an addendum opinion or, if necessary, another VA examination, for entitlement to service connection for a right hip disability. 2. Entitlement to Bilateral Carpal Tunnel Syndrome The Veteran contends that he has bilateral carpal tunnel syndrome that is directly related to his active service. In its September 2017 remand, the Board directed the AOJ to provide the Veteran a VA examination to determine whether the Veteran’s bilateral carpal tunnel syndrome is related to his active service. The Veteran was provided a VA examination in March 2018. The March 2018 VA examiner stated that the Veteran does not have a current diagnosis of bilateral carpal tunnel syndrome. However, review of the Veteran’s record reflects that the Veteran was diagnosed with bilateral carpal tunnel syndrome at an October 2012 VA examination. The October 2012 diagnosis of bilateral carpal tunnel syndrome must be addressed, even if not currently present on examination or if the disability resolved prior to VA’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, a VA addendum opinion is required to address the etiology of bilateral carpal tunnel syndrome present at any point during the period on appeal or in close proximity to the Veteran’s claim for service connection. See Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013). The matters are REMANDED for the following action: 1. Return the claims folder to the VA examiner who conducted the March 2018 hip examination; or, if the examiner is unavailable, another suitably qualified examiner, to obtain an addendum opinion as to the nature and etiology of the Veteran’s claimed right hip disability. If the examiner determines that another VA examination is necessary, one should be scheduled. (a.) The examiner should identify each right hip disability diagnosed during the pendency, or proximate to, the claim and specify whether each identified condition is an acquired disability, a congenital “defect,” or a congenital “disease.” The examiner must set forth the rationale and basis for each such finding. The examiner is advised that for purposes of VA compensation, a congenital “defect” is defined as a condition that is more or less stationary in nature, whereas a congenital “disease” is defined as a condition capable of improving or deteriorating. (b.) For each hip condition found not to be congenital, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during, or is otherwise related to, the Veteran’s active service, to include the October 2005 fall. (c.) If any diagnosis is considered a congenital “defect,” the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that there was a superimposed disease or injury during active service. If yes, please identify the superimposed disease or injury, as well as the resultant disability due to such superimposed disease or injury. (d.) If any diagnosed hip condition is considered a congenital “disease,” state whether such clearly and unmistakably pre-existed service and whether it is clear and unmistakable that the disability was not aggravated (increased in severity) beyond the normal progress of the disease in service. Any such clear and unmistakable evidence of record must be identified. (e.) If the Veteran’s right hip disability is not congenital, opine whether it is at least as likely as not (50 percent or greater probability) that the right hip disability is proximately due to, or the result of, the Veteran’s service-connected disabilities, specifically to include his service-connected right knee strain. (f.) If the Veteran’s right hip disability is not congenital, opine whether it is at least as likely as not (50 percent or greater probability) that the right hip disability was aggravated by the Veteran’s service-connected disabilities, specifically to include his service-connected right knee strain. 2. Forward the record and a copy of this remand to the examiner who conducted the March 2018 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion as to any bilateral carpal tunnel syndrome. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Provide a diagnosis for any bilateral hand disability demonstrated since service, found on current examination or in the record, to include carpal tunnel syndrome. In this regard, the examiner is requested to note that the Veteran was diagnosed with bilateral carpal tunnel syndrome at an October 2012 VA examination. (b.) For each hand disability, to include bilateral carpal tunnel syndrome, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran’s service or is otherwise etiologically related to the Veteran’s service, to include the Veteran’s reports of repetitive use of the hands as a machinery technician and while creating inspection reports. The examiner should indicate that the record was reviewed. A complete rationale must be provided for all opinions given. The examiner must note that a veteran may be service connected for a disability diagnosed at any time during or in proximity to the claim for service connection, even if the disability subsequently resolves. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for a right hip disability and bilateral carpal tunnel syndrome may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel