Citation Nr: 20008535 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 16-40 701A DATE: January 31, 2020 ORDER Entitlement to service connection for degenerative disc disease of lumbar spine is denied. Entitlement to service connection for sciatic nerve damage, left leg is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee is remanded. Entitlement to service connection for pseudofolliculitis barbae is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran’s degenerative disc disease of the lumbar spine had onset during service, within a year of separation from service, or is otherwise related to the Veteran’s period of active service. 2. The preponderance of the evidence of record is against finding that the Veteran has disability manifested by sciatic nerve damage of the left leg that began during active service or is otherwise related to active service. 3. The preponderance of the evidence of record is against finding that the Veteran’s sciatic nerve damage of the left leg was either caused or aggravated by a service-connected condition. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for sciatic nerve damage of the left leg have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1972 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for degenerative disc disease of the lumbar spine is denied. Service connection may be granted for a disability resulting for a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. Establishing service connection generally requires competent evidence of three things, (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury may be service connected. 38 C.F.R. § 3.310(a). Proving secondary service connection requires competent medical or lay evidence of: (1) a current disability that is not already service connected; (2) at least one service-connected disorder; and (3) a nexus between the current disability and the service-connected condition, showing that the current disability was either proximately due to or the result of the service-connected disorder, or that the current disability was aggravated beyond its natural progression by the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for deciding whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran’s service treatment records indicate that he had recurrent back pain beginning in 1973; however, during his separation examination, the Veteran’s back was marked as normal. See May 1981 Separation Examination. In the service, he hadn’t complained of back pain since 1975. See July 1975 and August 1975 Service Treatment Records. When the Veteran was examined for his back condition in January 2013, he was noted as having a current diagnosis of degenerative disc disease of the lumbar spine; grade I anterolisthesis, and spondylosis. The Veteran reported to the examiner that his in-service back pain resolved and that he first experienced pain after service in 2003, which had progressively increased since that time. The examiner opined that the Veteran’s condition less likely than not was due to his in-service back pain. As a rationale, the examiner explained that the Veteran had an in-service x-ray of the spine after his 1973 injury, which was negative and verified that he had no bony injury or anterolisthesis at that time. Furthermore, the examiner noted the Veteran’s reports that his back pain had resolved until approximately 30 years later. The examiner also stated that spondylosis and degenerative disc disease are chronic diseases of aging and the present findings on examination are within the normal age-related range. The Board notes that the Veteran’s lumbar spine has been diagnosed with degenerative joint disease or osteoarthritis, which is a “chronic” disease under VA law. Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection for the chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker, at 1331. While the Veteran has a current diagnosis of degenerative joint disease (or arthritis) of the lumbar spine, service connection for this condition is not available under 38 C.F.R. § 3.309 (a) as the credible evidence of record weighs against a finding that the Veteran had arthritis during service or within a year of separation from service. While the evidence is clear that the Veteran sustained an in-service injury to his low back that resulted in back pain during his period service, the evidence does not demonstrate that the Veteran was diagnosed with arthritis of the low back during service or within a year of separation from service. Service treatment records report that the Veteran underwent an x-ray in 1974 after his injury in 1973 that did not demonstrate any bony injury or arthritis. Additionally, the Veteran’s examination at separation also reported normal findings of the Veteran’s spine. Even considering the Veteran’s competent and credible statements regarding his low back pain, the Veteran has not reported a history of low back pain that has been continuous since his in-service injury. Rather, the Veteran specifically reported to the VA examiner that his in-service back pain resolved and that he did not experience back pain symptoms again until nearly thirty years later. As the evidence does not otherwise indicate a diagnosis of degenerative joint disease during service (or within a year of separation from service), or continuous symptoms of a back disability since that time, the Board finds that service connection pursuant to 38 C.F.R. § 3.303 (b) is not warranted. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309. While presumptive service connection is not warranted for the Veteran’s degenerative joint disease of the lumbar spine, service connection must still be considered on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Unfortunately, the Board finds the most probative evidence weighs against the Veteran’s claim for service connection for degenerative disc disease of the lumbar spine. Even though the Veteran experienced back pain intermittently during service, his last report of back pain during service was in 1975, approximately six years prior to separation. In addition, his May 1981 separation examination indicated that his back was normal. After service, the Veteran reported that his pain had resolved until 2003, approximately 22 years after discharge and 28 years after his most recent complaint of in-service back pain. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weight against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board also finds the January 2013 opinion provided by the VA examiner to be probative. The VA examiner opined that the Veteran’s current back disability is less likely than not related to active service. The examiner opinion was based upon review of the claims file and consideration of the Veteran’s assertions. The examiner provided support for this opinion to include: noting the length of the period between the Veteran’s complaints of low back symptoms; noting that spondylosis and degenerative disc disease are chronic diseases of aging and that the findings present during the Veteran’s examination were within the normal age-related range; and discussing fact that that x-rays taken after the Veteran’s in-service injury were normal. Furthermore, there are no competent medical opinions to the contrary. The Board has also considered the Veteran’s assertions. The Veteran’s belief that his back disability is linked to his in-service injury does not constitute competent evidence. Because he is not shown to have a medical background or expertise, he is considered a lay person in the field of medicine. Lay testimony is competent as to matters capable of lay observation or within a person’s first-hand experience and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board may not categorically discount lay evidence as not competent, but instead must determine on a case by case basis whether lay testimony is competent on the matter at issue, or whether medical evidence is required. Davidson, 581 F.3d at 1316. In this case, although the Veteran is competent to describe what he has personally observed or experienced, the ultimate questions of diagnoses and etiology here extend beyond an immediately observable cause-and-effect relationship and are beyond the competent of a lay witness. Therefore, the Veteran’s unsupported lay opinion is not competent evidence on this issue, and therefore lacks probative value. Layno v. Brown, 6 Vet. App. 465, 470-71 (1994). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for degenerative disc disease of the lumbar spine is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Entitlement to service connection for sciatic nerve damage, left leg is denied. Unfortunately, the Board finds that the evidence of record also weighs against service connection for sciatic nerve damage, left leg. Although the Board acknowledges that the Veteran experiences pain in his back that radiates to his left leg, the Board cannot grant service connection for his leg condition. See November 2011 VA Primary Care E&M Note. To the extent that the Veteran has contended that he has sciatic nerve damage of the left leg as secondary to his lumbar spine disability, the Board is denying service connection for the Veteran’s back disability; as such, the Veteran’s sciatic nerve damage of the left leg disability cannot be service connected on a secondary basis. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Additionally, none of the evidence of record indicates that the Veteran has sciatic nerve damage, left leg (or any left leg condition) directly due to the Veteran’s period of active service. The Veteran’s service treatment records do not indicate any complaints or treatment of left leg pain, and on his examination at separation his lower extremities were reported to be normal. During the Veteran’s 2013 VA examination, the Veteran did not report left leg pain that had onset during service and did not indicate any direct relationship to his period of active service. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for sciatic nerve damage, left leg is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Regarding the Veteran’s knee conditions, the Board notes that there is an examination from January 2013 stating that the Veteran does not have a current diagnosis of a left or right knee condition. However, the Veteran reported that he cannot run because his “knees will pop, become painful and go out.” See January 2013 VA C&P Examination. Moreover, he complained of bilateral knee pain to his VA provider in 2012. See May 2012 Nursing Telephone Encounter Note. The Board acknowledges that pain is a disability when pain reaches the level of functional impairment that affects earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). Accordingly, the Board finds that the Veteran is entitled to a new examination regarding the nature and etiology of his bilateral knee conditions. Entitlement to service connection for pseudofolliculitis barbae is remanded. Regarding the Veteran’s claim for pseudofolliculitis barbae, the Board finds that a new opinion is warranted. The Board notes that the Veteran reported during the January 2013 examination that he does not shave and “must” wear a short beard. However, the examiner found that the Veteran’s condition was less likely than not incurred in or otherwise related to his active service because he does not shave and “has no sequelae from previous symptoms.” The Board therefore finds this examination to be internally inconsistent by stating that the Veteran must wear a short beard but that he does not have any sequelae. Although the Veteran stated he does not shave, the Board acknowledges the possibility and probability that this is due to him not wanting to risk experiencing similar symptoms to those he exhibited while in active service. Therefore, the Board requests additional medical records, if any, affiliated with the Veteran’s pseudofolliculitis barbae be obtained and associated with the claims file and a new examination be conducted. See McLendon, 20 Vet. App. at 81. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate efforts to obtain any relevant, outstanding VA and/or private treatment records, for his bilateral knee condition and pseudofolliculitis barbae. 2. Undertake appropriate efforts to schedule the Veteran for a VA examination to determine the etiology of any current knee disability. The claims file must be made available to the examiner. The examiner must report review of the claims file. The examiner is specifically asked to: (a) Please identify any and all knee conditions currently attributable to the Veteran; (b) For each condition so identified, please opine as to whether it is at least as likely as not (50 percent or greater probability) that said condition(s) manifested during, or is/are the result of, the Veteran’s active service. (c) If no current left or right knee diagnosis is provided, determine whether the Veteran has any functional limitations of either knee due to pain. If so, provide an opinion whether it is at least as likely as not (a 50 percent probability) that any left or right knee functional limitation present during the appeal period is due to or the result of, any incident of his active service. A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the Veteran’s lay assertions. The Veteran’s lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. Undertake appropriate efforts to schedule the Veteran for a VA examination to determine the etiology of any current pseudofolliculitis barbae. The claims file must be made available to the examiner. The examiner must report review of the claims file. The examiner is specifically asked to determine whether the Veteran has a current diagnosis of pseudofolliculitis barbae; and if so, whether it is at least as likely as not (a 50 percent probability) that any disability is due to or the result of, any incident of his active service. If the examiner determines that the Veteran does not have a current diagnosis of pseudofolliculitis barbae, the examiner must discuss the Veteran’s reports that he must maintain a beard. A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the Veteran’s lay assertions. The Veteran’s lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Patrick Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.