Citation Nr: 18120489 Decision Date: 07/23/18 Archive Date: 07/23/18 DOCKET NO. 15-18 670 DATE: July 23, 2018 ORDER Entitlement to service connection for a back injury, to include residuals of lumbosacral strain, is denied. Entitlement to service connection for bilateral lower extremity post-phlebitic syndrome is denied. FINDINGS OF FACT 1. The preponderance of competent evidence is against a finding that any current back disability is etiologically related to any injury, treatment, or aspect of active service. 2. No probative evidence was submitted that establishes the Veteran incurred an injury or disability in service, or indicates that any bilateral lower extremity post-phlebitic syndrome may be associated with any incident or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back injury have not been met. 38 U.S.C. § 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 4.71a. 2. The criteria for service connection for bilateral lower extremity post-phlebitic syndrome have not been met. 38 U.S.C. § 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, through counsel, expressed to VA in writing the intention to withdrawal the requested Board hearing. Since the withdrawal request was received prior to the scheduled hearing date, the Board finds that the hearing request has been withdrawn. 38 C.F.R. § 20.704(e). Service Connection VA’s statutory duty to assist requires VA to provide a medical examination or obtain a medical opinion if the evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a current disability, a 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 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between a service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Chronic diseases in service or those with a continuity of symptoms from service to a post-service diagnosis may also be service connected. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, that does not mean that any manifestation of pain or malfunction in service will permit service connection for a related disease which was first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159. Competent lay evidence may establish the presence of observable symptomatology and may also be sufficient to support a claim of service connection. Layno v. Brown, 6 Vet. App. 465 (1994). In determining the probative value to be assigned to a medical opinion, the Board must consider whether a medical expert was fully informed of the pertinent factual premises and medical history of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In instances of conflicting medical opinions, the Board may favor one opinion and assign a higher probative value over another, as long as an adequate statement of the Board’s reasoning is given. D’Aries v. Peake, 22 Vet. App. 97 (2008). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a back injury, to include residuals of a lumbosacral strain The Veteran, through counsel, contends that a back injury is the result of a muscle strain in service. Additionally, the Veteran has claimed that he was discharged due to a back injury in an April 2012 statement in support of claim. The Veteran served on active duty from August 6, 1968, to September 4, 1968, a period of 29 days. An August 1968 separation examination listed a congenital deformity of the right hand as disqualifying for procurement. A service form noted that the Veteran was released from service due to a void induction. Additionally, the Veteran’s certificate of separation from active service listed the reason for separation as “voidance of induction” with separation code “376” for not meeting medical fitness standards at the time of induction. Moreover, service medical records, to include a separation medical examination, do not show complaints, treatment, or a diagnosis for any back injury. The medical board examination at separation from service found that the Veteran’s spine was normal. The Board finds that the Veteran’s statement is not competent to diagnose or provide the etiology for the claimed back injury. Additionally, the inconsistencies in the Veteran’s statement regarding the reason for his separation tend to indicate that the statement may contain other inconsistencies. Accordingly, the Board assigns the Veteran’s statement a low probative value. There is no evidence of a diagnosis or symptoms of a back disability within one year of service. VA treatment records show complaints of chronic back pain, and noted back surgeries in 1978 and 1992 for ruptured discs. However, the private medical records for the surgeries have since been destroyed. In September 2013, a VA doctor opined that the Veteran’s back pain was less likely than not (less than 50 percent probability) related to service. The examiner reasoned that the Veteran’s separation examination did not list any back injuries or treatment, there were no service medical records or sick call records documenting a back-muscle strain, the Veteran’s separation was due to a congenital hand disease, and the Veteran did not undergo back surgery until approximately 10 years after service. The Board finds that opinion is competent since the doctor was informed of the Veteran’s history and reviewed service and VA records, credible since the opinion came from a VA medical doctor, and highly probative since it is consistent with the evidence. Additionally, the Board finds that medical opinion was sufficient to satisfy the VA’s duty to assist since either an examination or opinion may be provided. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Counsel argues that the VA examination was inadequate since the examiner did not consider whether pain on movement causes additional functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Board finds no merit in that argument since the cited case applies to examinations which determine the current severity of a disability, and the Veteran was correctly provided a medical opinion, based on the accepted clinical evidence and examination, to determine whether any back disability may be related to service. DeLuca v. Brown, 8 Vet. App. 202 (1995).; 38 C.F.R. § 3.159(c)(4). Moreover, the Board notes that the Court’s ruling in that case applies to the rating of service connected disabilities, which the Veteran does not have. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board also finds that no medical opinion was provided which related any alleged in-service back injury to the Veteran’s complaints of lumbosacral pain. Moreover, no medical literature was submitted which indicated that there may be an association between a muscle strain of the spine and herniated or ruptured discs of the spine. The Board finds that the preponderance of the evidence is against the claim because the service medical records do not show complaints or a diagnosis of any back injury, the probative medical opinion did not provide a nexus between any in-service muscle strain and herniated or ruptured discs, and no medical literature or opinion was submitted which supported the claim. Moreover, the only positive evidence submitted was the Veteran’s own statements, which were determined to be less probative than the VA medical opinion, and which were determined to not be competent to diagnose back disabilities or provide etiological opinions. The evidence also does not show that any presumptive disability of the back manifested within any applicable presumptive period. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a back disability is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral lower extremity post-phlebitic syndrome The Veteran, through counsel, contends that VA is required to provide an examination to decide the claim. However, the Board finds that no probative evidence was submitted that established the Veteran incurred any injury or disability in service, or that indicates that any bilateral lower extremity post-phlebitic syndrome may be associated with any incident or injury in service. Since service connection for a spinal injury is not warranted, the Board finds no basis for the claim based on a secondary theory of service connection. 38 C.F.R. § 3.310(a). Secondary service connection cannot be established where service connection has not been established for the claimed primary disability. The service records do not show complaints, treatment, or a diagnosis of any bilateral lower extremity post-phlebitic syndrome. The medical board examination at separation from service found that the Veteran’s lower extremities and vascular system were normal. The post-service medical records do not show complaints, treatment, or a diagnosis of any bilateral lower extremity post-phlebitic syndrome within one year of service. No medical literature or opinion was submitted to support the claim. Additionally, the Board finds no evidence to support a direct theory of service connection, as there is no competent opinion of record relating any current leg circulatory disability to service, to any service-connected disability, or to any incident of service. 38 C.F.R. § 3.304. The Board finds that any statements of the Veteran or representative purporting to provide an etiological opinion are not competent as they are not shown to have the requisite medical training to provide such an opinion. Accordingly, the Board finds that the preponderance of the evidence is against the claim and service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel