Citation Nr: 18112993 Decision Date: 06/21/18 Archive Date: 06/20/18 DOCKET NO. 10-03 485 DATE: June 21, 2018 ORDER Entitlement to service connection of a low back disability is denied. Entitlement to service connection of a bilateral hip disability is denied. Entitlement to service connection of a bilateral neurological disability of the lower extremities is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a low back disability due to a disease or injury in service, to include any injury sustained while jumping from a helicopter. 2. The Veteran’s bilateral hip pain neither proximately due to nor aggravated beyond natural progression by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. 3. The Veteran’s bilateral neuropathic pain of the lower extremities neither proximately due to nor aggravated beyond natural progression by a service-connected disability, and is not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 2. The criteria for service connection for bilateral hip pain are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(a). 3. The criteria for service connection for bilateral neuropathic pain of the lower extremities are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to November 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal form a February 2009 rating decision issued by the department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. As a matter of background, this appeal previously came before the Board in September 2014 at which time the Board reopened a previously denied and final claim of service connection of a low back disability, and remanded the issues for further development. The appeal returned to the Board in May 2016, at which time it was also remanded for further development. A third remand was issued in May 2017 to ensure complete compliance with prior remand orders. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 1. Entitlement to service connection of a low back disability The Veteran seeks service connection of a low back disability, which he asserts is the result of a back injury sustained during a jump from a helicopter while stationed in the Republic of Vietnam. The Board finds that the claim should be denied. The Veteran has a present diagnosis of mild degenerative changes of the lumbar spine with arthritic changes. The Board has reviewed the Veteran’s service treatment records and military personnel records and found no evidence of any low back injury during active service, and upon separation in 1973, he denied any low back disability and asserted that he was in good health. Nonetheless, the Veteran has confirmed combat service in the Republic of Vietnam, and given the nature of that service, the incident involving a jump from a helicopter is presumed. 38 C.F.R. § 3.304(d). VA sought a medical opinion in regarding any possible in-service causation of a low back disability in August 2016. The examiner conducted a physical examination and concluded that the Veteran’s low back disability was less likely than not caused by or related to any incident of active service. Specifically, the examiner noted that the Veteran denied any back issues upon discharge, and that his back did not begin bothering him until one year or more after discharge. The examiner also noted that he worked a physically demanding job for fourteen years after service and that evidence of degenerative arthritis was not noted until 1997, many years after separation. The Board, in March 2017 found that opinion to be less than probative because it did not fully address evidence of low back symptoms as early as 1984, and remanded the claim for further development. An addendum opinion was obtained in May 2017, however, that opinion merely restated the August 2016 opinion. As such, the Board sought an independent medical review of the claims file. In March 2018, a medical specialist reviewed the Veteran’s claims file, to include his assertions and reported medical history, as well as his documented medical treatment history dating since active service, and determined that it was less likely than not that the Veteran had a current low back disability that had its onset during active service or was related to any incident of active service, including the reported helicopter jump. In support of this opinion, the doctor included a detailed review of the Veteran’s medical history, including a 1984 report of a low back strain and subsequent imaging and treatment records. The examiner acknowledged the Veteran’s reported in-service back injury in 1971 under circumstances which prevented formal evaluation (combat), as well as his 1973 separation assertion that he had no low back issues to report, which the examiner stated was consistent with an absence of damage to the spine on the Veteran’s subsequent imaging studies. However, the record does report the development of low back pain following a lifting injury at work in 1984 with continued treatment thereafter. The examiner stated that the magnitude of the Veteran’s low back pain in sot consistent with his back condition, as diagnosed. The degenerative changes diagnosed in the Veteran are very common and are associated with the aging process, with genetic factors increasingly recognized as major contributors to such changes. While a causal relationship between his current spine condition and his back injury in 1971 is within the realm of possibility, the sum of the evidence indicates that it is more likely that the spine condition would have developed, whether or not the Veteran experienced the injury in service. As such, the disability was less likely than not related to his in-service injury. The Board finds this opinion to be persuasive. It was rendered by a medical specialist in contemplation of the Veteran’s complete medical history, to include his own reports of injury and symptoms, and included citation to known medical principles. The Board has reviewed the evidence of record but found no medical evidence or opinions that would contradict this opinion. The Board does acknowledge the Veteran’s own statements and beliefs regarding the etiology of his low back pain, however, it finds those statements to be less persuasive. The Board recognizes that lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his low back disability, especially considering the VA examiner’s conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of low back pain in service. See id. Finally, to the extent that the Veteran has been shown to have arthritis changes of the lumbar spine, the evidence of record demonstrates that such changes did not occur until many years after separation from service. As such, presumptive service connection must be denied. In sum, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s present diagnosed low back disability had onset during active service, or is otherwise etiologically linked to any incident of active service, to include the Veteran’s reported helicopter incident. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to service connection of a bilateral hip disability The Veteran seeks service connection for a bilateral hip disability. The Board finds that the claim should be denied. At the outset, the Board observes that the evidence of record does not support a present diagnosis of a bilateral hip disability. Multiple reviews and examinations of the Veteran have failed to provide any specific diagnosed hip malady which may account for his reported hip pain. Pain alone has long been understood to not constitute a disability for purposes of entitlement to VA benefits. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, recent development by the Court of Appeals for Federal Claims (Federal Court) has held that the term “disability” for VA purposes refers to the functional impairment of earning capacity, and not to the underlying etiology of that disability. In other words, pain alone, which results in a functional impairment, can constitute a disability for purposes of service connection. Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). However, even presuming the Veteran’s hip pain rises to a level of functional impairment that would constitute a disability for VA purposes, the Board finds the claim must still be denied. The Board has carefully reviewed the Veteran’s service treatment records and found no evidence of any hip injury or symptoms during active service. Upon separation from service, the Veteran himself asserted that he was in good health and denied any hip issues. Therefore, to the extent that there is no in-service incident or injury to which such a disability may be linked, the claim fails the second criteria of direct service connection. For his part, the Veteran asserts his hip pain is secondary to his low back disability. However, for purposes of secondary service connection, the primary criterion is a different disability which is already service connected, to which the claimed disability may be linked. As discussed in more detail above, the Board has denied service connection of a low back disability. Therefore, secondary service connection cannot be granted, as a primary service-connected disability does not exist. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 3. Entitlement to service connection of a bilateral neurological disability of the lower extremities. The Veteran seeks service connection for a bilateral neurological disability of the lower extremities, claimed as neuropathy. The Board finds that the claim should be denied. At the outset, the Board observes that the evidence of record does not support a present diagnosis of lower extremity neuropathy, but does include a possible diagnosis of neuropathic pain in the lower extremities. Pain alone has long been understood to not constitute a disability for purposes of entitlement to VA benefits. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, recent development by the Federal Court has held that the term “disability” for VA purposes refers to the functional impairment of earning capacity, and not to the underlying etiology of that disability. In other words, pain alone, which results in a functional impairment, can constitute a disability for purposes of service connection. Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). However, even presuming the Veteran’s lower extremity neuropathic pain rises to a level of functional impairment that would constitute a disability for VA purposes, the Board finds the claim must still be denied. The Board has carefully reviewed the Veteran’s service treatment records and found no evidence of any lower extremity injury or symptoms during active service. Upon separation from service, the Veteran himself asserted that he was in good health and denied any lower extremity issues. Therefore, to the extent that there is no in-service incident or injury to which such a disability may be linked, the claim fails the second criteria of direct service connection and must be denied. For his part, the Veteran asserts his neuropathic pain is secondary to his low back disability. However, for purposes of secondary service connection, the primary criterion is a different disability which is already service connected, to which the claimed disability may be linked. As discussed in more detail above, the Board has denied service connection of a low back disability. Therefore, secondary service connection cannot be granted, as a primary service-connected disability does not exist.   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel