Citation Nr: 18154718 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 16-37 908 DATE: December 3, 2018 ORDER Entitlement to service connection for a low back disorder is denied. REMANDED Entitlement to a disability evaluation in excess of 10 percent for iliofemoral nerve entrapment of the left lower extremity secondary to inguinal hernia is remanded. Entitlement to a disability evaluation in excess of 10 percent for iliofemoral nerve entrapment of the right lower extremity secondary to inguinal hernia is remanded. FINDING OF FACT A preponderance of the evidence shows the Veteran’s current low back disability is not etiologically to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1988 to September 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).. 1. Entitlement to service connection for a low back disorder Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Turning to the Veteran’s low back disorder, May 2012 private treatment records reflect diagnoses of lumbar bulging or herniated disc, lumbar facet degeneration and hypertrophy, and lumbar foraminal stenosis. A VA examiner with whom the Veteran met in August 2014 characterized the Veteran’s current diagnosis as degenerative arthritis of the lumbar spine. The current diagnosis requirement is met in the instant case. A review of the Veteran’s service treatment records reveals a single complaint of lower back pain in May 1990. The Veteran was treated and diagnosed with a muscle strain. The Veteran’s separation examination is silent for back-related complaints, and there is no evidence treatment was sought in the year following separation of for many years thereafter. June 2012 private medical records show the Veteran endorsed a ten-year history of lower back pain, which suggests the onset of pain approximately eleven years after discharge. Treatment records are altogether silent for any indication of an etiological link to service. The VA examiner who conducted the August 2014 examination furnished a negative etiological opinion, relying on the nature of the Veteran’s current disability, which he explained is a chronic condition not understood to bear an etiological relationship to an acute and transitory condition like the one the Veteran experienced in service. Moreover, the examiner stated that the Veteran’s in-service injury appeared to have resolved entirely, the record being devoid of followup treatment or complaints. In support of his conclusions, the examiner also noted the separation examination which was silent for back-related complaints, the lack of back-related complaints or treatment in the decade following separation, and the Veteran’s own statement regarding the onset of his low back symptoms. The Board finds the August 2014 examiner’s opinion to constitute the most probative evidence on the question of etiology in this case. It is based on an in-person examination and thorough records review, and is in accord with the evidence of record. Moreover, it is uncontroverted; no treating or examining provider has ever linked the Veteran’s current back problems to any aspect of service, to include injury therein, and the Veteran has not named the in-service injury as the point of onset to any treating provider. Accordingly, the Board finds that the evidence preponderates against the Veteran’s service connection claim, and the appeal must be denied. REASONS FOR REMAND 1. Entitlement to a disability evaluation in excess of 10 percent each for iliofemoral nerve entrapment of the left and right lower extremities secondary to inguinal hernia is remanded. The record shows the Veteran’s neurological disabilities of the bilateral lower extremities were last evaluated in August 2014. Over four years having passed since that examination, and the Veteran reporting continuing and worsening symptoms, the Board finds that a new VA examination is necessary to explore the current nature and severity of the disabilities. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran’s claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2. After the above development is accomplished, schedule the Veteran for a VA examination. The claims folder must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. The examiner is asked to determine the current nature and severity of the Veteran’s iliofemoral nerve entrapment of the left and right lower extremities. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria. 3. Review the opinion and any examination report to ensure that it is in complete compliance with the directives of this remand. If the opinion or report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). (Continued on the next page)   4. If any benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel