Citation Nr: 20028835 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 09-48 502 DATE: April 24, 2020 ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine (back disability). 2. Entitlement to service connection for degenerative disc disease of the cervical spine (neck disability). 3. Entitlement to service connection for neuropathy of the bilateral lower extremities. 4. Entitlement to service connection for neuropathy of the bilateral upper extremities. ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for neuropathy of the bilateral lower extremities is denied. Entitlement to service connection for neuropathy of the bilateral upper extremities is denied. FINDINGS OF FACT 1. A back disability was not shown in service or for many years thereafter and has not been shown to be related to service. 2. A neck disability was not shown in service or for many years thereafter and has not been shown to be related to service. 3. Neuropathy of the bilateral lower extremities was not shown in service or for many years thereafter and has not been shown to be related to service. 4. The evidence of record does not demonstrate a diagnosis of neuropathy of the bilateral upper extremities during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met or approximated. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for a neck disability have not been met or approximated. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for neuropathy of the bilateral lower extremities have not been met or approximated. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 4. The criteria for service connection for neuropathy of the bilateral upper extremities have not been met or approximated. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to May 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In September 2010 the Veteran testified at a hearing before a Decision Review Officer at the RO. In April 2012 the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. Transcripts from both hearings are associated with the record. When this case was most recently before the Board in September 2017, it was remanded for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Claim The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty. 38 C.F.R. § 3.309. Arthritis is considered to be a “chronic disease” under 38 C.F.R. § 3.309. However, the Veteran does not contend that his claimed degenerative disc disease of the back or neck manifested within one year of separation from active duty. Therefore, service connection on a presumptive basis is not warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.§ 1111 (2012); 38 C.F.R. § 3.304 (b) (2017). This presumption attaches only where there has been an induction examination in which the later complained of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304 (b) (2017). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1) (2017). VA’s General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111 (2017), VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In deciding a claim based on aggravation, after having determined the presence of a pre-existing condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153 (2012); 38 C.F.R. 3.306 (2017). Temporary or intermittent flare-ups of the pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Accordingly, “a lasting worsening of the condition”-that is, a worsening that existed not only at the time of separation but one that still exists currently-is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Put another way, the presumption of soundness is not a “sword” for the Veteran to fulfill the second element of service connection. As noted, before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (the presumption of soundness does not “relieve the veteran of the burden of showing that [she] suffered from a disease or injury while in service”); Horn v. Shinseki, 25 Vet. App. 231, 236 (2012) (“In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service.”; see also Dye v. Mansfield, 504 F.3d 1289, 1293 (Fed. Cir. 2007) (presumption of soundness involves questions of preexistence of “medical problems that arose during service”); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004) (disability compensation requires “ ‘personal injury suffered or disease contracted in line of duty’ “ (quoting 38 U.S.C. § 1110 (2012)). Back, Neck, and Neuropathy of the Bilateral Lower Extremities During the appeal period, the Veteran has raised multiple possible theories of entitlement to service connection for the issues on appeal. In November 2008 the Veteran described that he was beaten by other sailors in the legs, arms, and back as part of an initiation process. In November 2010 the Veteran reported that he attempted to re-enlist in the Army in 1974 but was rejected due to a spinal problem that was not present at the time of entrance into the Navy. At the outset, the Board notes that a February 1974 re-enlistment examination was obtained in response to the Board’s remand that showed the Veteran was qualified for re-enlistment; “no evidence of any back injury” was noted. Service treatment records show that enlistment and separation examinations were negative for any findings related to the back, lower extremities, or upper extremities. The report of medical history at enlistment documents the Veteran’s reports of back troubles and cramps in the legs, his remarks that his leg cramps stemmed from walking, and his remarks that his low back ached after long periods of heavy lifting. As noted above, only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304 (b) (2017). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1) (2017). Therefore, the Veteran is presumed to have been sound at entrance to active service. See Quiren v. Shinseki, 22 Vet. App. 390 (2009). The effect of soundness would establish in-service incurrence of a disease or injury. Should VA rebut this presumption of soundness, in-service incurrence is not established and service connection is not warranted unless aggravation to the extent necessary if found. In this case, VA examination reports and treatment records show diagnoses to include degenerative disc disease of the lumbar and cervical spine and neuropathy of the bilateral lower extremities. Therefore, Hickson element (1) is met for these claims. With respect to Hickson element (2), in-service disease or injury, a January 1971 service treatment record noted the Veteran’s complaint of pain in the left leg. The Veteran reported that he was initiated into new barracks by being jumped and punched in the left post thigh with fists approximately 18 hours prior. The clinician observed soft tissue swelling, ecchymosis, tenderness, and no respective fractures. The Veteran was discharged and advised to use cold packs. In April 1970 the Veteran was treated twice for back pain. The Veteran initially reported that his back went out after stooping over to tie his shoes. He reported a long history of back pain from increased exercise. He was prescribed with lower back syndrome exercises and medication. A couple of days later, the Veteran returned for treatment, noting no relief from the medications or exercise. He reported injuring his back when he was hit with a tree limb while tree trimming two years prior. It was noted that there was no complaint of recent insidious onset of lower back pain and that the pain was accentuated with exercise. Lumbosacral spine x-rays were normal. Accordingly, Hickson element (2) is at least arguably met for the claims on appeal. The Veteran was afforded a VA examination in April 2011 in which the examiner opined that the degenerative disc disease of the back was not caused by or a result of his military service beyond a normal progression. In response to the Board’s September 2017 remand, the Veteran was afforded VA examinations in April 2018 in which the examiner provided an extensive review of the evidence of record. The examiner stated that there was no evidence of a neck condition prior to service. The examiner stated that while it was noted and acknowledged that the Veteran reported back trouble and leg cramps at the time of his entrance in the military, "back trouble" did not indicate a neck condition. The examiner stated that nowhere in the service treatment records did it state he had neck problems prior to service; nowhere in the service treatment records did he complain of neck pain. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that she considered the Veteran's lay statements that he was beaten in service on his back and neck; however, at the same time, she had to also acknowledge the enormous about of evidence that indicated his credibility was uncertain. The examiner referred to a list of inconsistencies. The examiner stated that given that credibility was significantly in question, she had to base her opinion on actual findings in the record. The examiner stated that the records clearly indicated onset of neck pain was in relation to post-service work-related accidents as well as a fall down the stairs; she listed medical evidence that supported this conclusion. The examiner concluded that there was no evidence of a neck injury in service, no evidence of neck pain or any neck condition from 1972 to 1993, and clear evidence of post-service neck injuries. The April 2018 examiner stated that based on the records and the treatment prescribed, the Veteran had acute muscular low back pain in 1970 that was treated appropriately and resolved. The examiner stated that she found no clear evidence that the Veteran had a pre-existing back condition as he was found fit for service and was then treated for an acute condition that resolved without evidence of residual. The examiner stated that there was no evidence that degenerative disc disease pre-existed service. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that while she considered the Veteran's lay statements regarding his claimed back injury/condition, as noted above there were significant inconsistencies in the record. As a result, heavier weight was given to the documentation. The examiner stated that it was clear from the record that his back condition began as the result of a work-related injury in 1982. The examiner stated that the records clearly noted that the Veteran received compensation as a result of this injury and had no back problems prior to this injury. The examiner opined, after extensive review of all of the records, that the current back condition was the direct result of the work-related injury that occurred in 1982. The April 2018 examiner also opined that the neuropathy of the bilateral lower extremities was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran had lumbar radiculopathy involving the sciatic nerve; this was caused by nerve impingement as it existed in the back. The examiner stated that this was not caused by the Veteran’s claim of being hit in the back nor his claim of being hit in the left leg during service. In this case, as to the issue of the etiology of the Veteran’s claimed back, neck, and neuropathy of the bilateral lower extremities disabilities, the Board finds that the VA examiners made it clear that it was their opinions that the disabilities were not related to service. As noted above, the Veteran is presumed to have been sound at entrance to active service. Furthermore, the evidence of record does not clearly and unmistakably show (i.e., it is undebatable) that a preexisting disability was aggravated by service. Instead, the Board finds that the VA examiners concluded that the Veteran’s disabilities were related to a post-service work-related injury. To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Accordingly, the Board concludes that the VA opinions carry significant weight. No other competent opinion providing a positive nexus opinion has been presented. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current back, neck, or neurological disability, as the causative factors for such are not readily subject to lay observation. Therefore, the Veteran’s claims that his disabilities are etiologically related to service are outweighed by the competent and probative medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the VA examiners’ opinions are competent and probative as they were rendered after an evaluation of the Veteran, review of the Veteran’s history, and consideration of medical principles by licensed medical professionals. Therefore, a nexus between the Veteran’s back, neck, and neuropathy of the bilateral lower extremities cannot be established, and the criteria of Hickson element (3) are not met. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). Neuropathy of the Bilateral Upper Extremities In this case, the Veteran has not been diagnosed with neuropathy of the bilateral upper extremities during the pendency of this claim; accordingly, the claim fails as Hickson element (1) is not met. To this point, the Veteran was afforded a VA examination in April 2018 in which the examiner stated that no upper extremity conditions were identified. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran did not have a diagnosis of neuropathy. The examiner stated that the Veteran’s claimed symptoms could not be attributed to a peripheral nerve condition; his examination was completely normal. The examiner stated that the Veteran’s symptoms did not follow any anatomical or dermatomal pattern. The examiner stated that malingering with symptom magnification was suspected. The Board notes that in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), the Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” The case reversed years of precedent that had held that “pain alone is not a disability for the purposes of VA disability compensation.” Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. As to the issue of service connection for neuropathy of the bilateral upper extremities, the Board finds that the Veteran’s complaints and symptoms have been deemed unreliable at best. As such, any manifest symptoms alleged by the Veteran do not amount to a separate functional impairment tantamount to a disability subject to service connection. Based upon review of the evidence above, the Board finds the Veteran’s claim for service connection for neuropathy of the bilateral upper extremities must fail because the most recent medical evidence does not indicate a current diagnosis of this condition. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans’ benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). For the sake of thoroughness, the Board also notes that Hickson element (3) is also not met for the claim. No positive etiological opinions supporting a nexus between the claimed neuropathy of the bilateral upper extremities and service have been submitted for this claim. Accordingly, the claim fails in this regard as well. To the extent that the Veteran’s submission of a claim of entitlement to service connection for neuropathy of the bilateral upper extremities indicates a belief that he currently has the disorder and it is linked to active duty, the Board finds this evidence to be of little probative value. The Veteran is competent to report his beliefs; however, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical diagnosis or opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert, 1 Vet. App. 49, 55; 38 U.S.C. § 5107(b) (West 2014). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., Counsel 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.