Citation Nr: 20031237 Decision Date: 05/04/20 Archive Date: 05/04/20 DOCKET NO. 14-03 309 DATE: May 4, 2020 ORDER 1. Service connection for a lumbar spine disability is denied. 2. Service connection for peripheral neuropathy of the lower extremities is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of arthritis of the lumbar spine. 2. The Veteran experienced a lumbar spine injury during service. 3. Symptoms of arthritis were not chronic in service or continuous since service, and arthritis did not manifest to a compensable degree within one year of service. 4. The current lumbar spine disability is unrelated to the lumbar spine injury during service. 5. The Veteran has a current diagnosis of peripheral neuropathy of the lower extremities. 6. Symptoms of a neurological disorder were not chronic in service or continuous since service and peripheral neuropathy did not manifest to a compensable degree within one year of service. 7. The peripheral neuropathy of the lower extremities is unrelated to the lumbar spine injury during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1112, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the lower extremities have not been met. 38 U.S.C. §§ 1101, 1112, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to March 1969. The Veteran testified at a January 2019 Board of Veterans’ Appeals (Board) hearing in this case. In January 2020, these claims were remanded by the Board for further development. Development has been completed, and the claims are again before the Board. The Board has considered the April 2018 letter submitted by the Veteran requesting Higher-Level Review under RAMP; however, as the Veteran had not yet been invited to participate in RAMP when this form was submitted and did not respond to the subsequent invitation to participate in RAMP sent in June 2018, the claim must be decided under the legacy system. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Arthritis and peripheral neuropathy (as organic disease of the nervous system) are “chronic” diseases under 38 C.F.R. § 3.309(a); therefore, the chronic disease presumptive service connection provisions under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis or organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Where a disease is not manifest to a compensable within one year of service discharge, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). The Veterans’ Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Specifically, the VCAA enhanced VA’s duty to notify and assist claimants in substantiating their claim for VA benefits. The record reflects that VA provided the Veteran with notice throughout the claims process, including the decisions that were made and the reasons behind them. The record also reflects that VA provided notice of what additional information was needed to substantiate the claim and ways in which the Veteran could assist with the process. For these reasons, VA met the duties under the VCAA to notify and assist. 1. Service Connection for a Lumbar Spine Disability The Veteran asserts that the current lumbar spine disability is related to service. Specifically, the Veteran asserts that the current degenerative arthritis of the lumbar spine is related to injuries sustained during service when he fell on his back while unloading a ship and when he assisted a friend who had fallen off a barge. Regarding a current disability, the Veteran is currently diagnosed with lumbar spine arthritis. See January 2020 VA examination. Regarding an in-service injury, the Veteran testified at the January 2019 Board hearing that during service, he fell on his back during service while unloading a ship and later injured his back while helping a friend who had fallen off a barge. The Board has also considered the Veteran’s testimony that his back has bothered him since service. While the Board finds the Veteran’s assertions that he sustained injuries to his back during service to be credible, the Board does not find credible the assertion that a back disability started during service and has been continuous since service discharge. This is because the assertion that a back disability had onset during service and has been continuous since service discharge is inconsistent with and outweighed by other evidence of record more contemporaneous with service, including a February 1969 Report of Medical History on which the Veteran denied recurrent back pain and a February 1969 Report of Medical Examination on which the spine and musculoskeletal system were evaluated as clinically normal. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the current lumbar spine arthritis is not caused by, or related to, an injury, disease, or event during service. While the Board finds it credible that the Veteran sustained back injuries during service, and the Veteran is competent to report that his back has bothered him since service, the Board finds that the current lumbar spine disability did not have onset during service, has not been continuous since service discharge, did not manifest to a compensable degree within one year of service discharge, and is not related to injuries that the Veteran sustained during active service. Service treatment records do not contain any complaints of or treatment for lumbar spine pain during service. While the February 1969 Report of Medical History at service discharge shows that the Veteran fell from a ship during service, it also shows that the Veteran denied recurrent back pain. A February 1969 report of Medical Examination shows that the spine and other musculoskeletal system were evaluated as clinically normal. A January 2020 VA examination shows that the Veteran was first diagnosed with degenerative changes of the lumbar spine in January 2020. The January 2020 VA examiner opined that the current lumbar spine disability is less likely than not related to service because the current lumbar spine disability is related to normal atraumatic changes of the aging process, as shown on imaging studies of the lumbar spine. The weight of the evidence shows no chronic symptoms of arthritis of the lumbar spine during service or continuous symptoms of arthritis of the lumbar spine since service separation, or arthritis to 10 percent within one year of service. The records do not reflect any complaints of or treatment for lumbar spine pain until August 1977, over eight years after service discharge. The lay and medical evidence also weighs against a finding of continuous symptoms of arthritis of the lumbar spine since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either “chronic” in-service or “continuous” post-service symptoms, or symptoms manifest to 10 percent or more within one year of service discharge. As discussed above, neither the service treatment records, nor the physical examination performed at service separation indicate any history, findings, or diagnosis of degenerative arthritis of the lumbar spine. Rather, the evidence shows that symptoms of arthritis were not manifest until many years after service discharge. The first complaints of a lumbar spine disability were in August 1977, over eight years after service discharge, and the first x-ray evidence of degenerative arthritis of the lumbar spine was in January 2020, over 50 years after service discharge. The approximately eight-year period between service and complaints of a lumbar spine disability is a factor that weighs against a finding of in-service incurrence, including by continuous symptoms since service from which service incurrence could be presumed. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The same evidence also shows that symptoms of degenerative arthritis of the lumbar spine did not manifest to a degree of 10 percent or more within one year of service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(a) is not warranted. Specifically, the medical and lay evidence reflects that the Veteran was first diagnosed with degenerative arthritis of the lumbar spine many years after service discharge. As degenerative arthritis did not manifest within one year of service separation, the criteria for manifestation of lumbar spine arthritis, in the form of degenerative arthritis to a compensable (i.e., at least 10 percent) degree within one year of service separation are not met. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. On the question of direct nexus between the current lumbar spine disability and service, the Board finds that the preponderance of the lay and medical evidence is against a finding that the currently diagnosed arthritis of the lumbar spine is causally related to service. While the Board finds the Veteran competent to report lumbar spine pain and symptoms during service, the weight of the evidence shows that symptoms of arthritis of the lumbar spine began several years after service discharge, and that the Veteran was not diagnosed with lumbar spine arthritis until over 50 years after service, in January 2020. As discussed above, service treatment records do not reflect any complaints of or treatment for lumbar spine pain during service. Rather, the record shows that the first complaints of a lumbar spine disability were in August 1977, over eight years after service discharge. See August 1977 Request for Physical Examination. Thus, after a review of all the evidence, lay and medical, the Board finds that the weight of the evidence shows that the current lumbar spine arthritis did not have onset during service, or within one year of service discharge, and is not otherwise related to service. As a result, service connection is not warranted on a direct basis. The weight of the competent and credible evidence of record demonstrates no relationship between the Veteran’s current lumbar spine arthritis and active service. For these reasons, the Board finds that the preponderance of the evidence is against service connection for lumbar spine arthritis, and the claim is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service Connection for Peripheral Neuropathy of the Lower Extremities The Veteran asserts generally that the peripheral neuropathy of the lower extremities is related to back injuries during service, which he sustained when he fell on his back while unloading a ship and when he assisted a friend who had fallen off a barge. Regarding a current disability, the Board finds that the Veteran is currently diagnosed with peripheral neuropathy of the lower extremities. See January 2020 VA examination. Regarding an in-service injury, the Veteran testified at the January 2019 Board hearing that during service he fell on his back while unloading a ship and later injured his back while helping a friend who had fallen off a barge. The Board finds these assertions credible. While the Board finds the Veteran’s assertions that he sustained injuries to his back during service to be credible, the Board does not find credible the assertion that the peripheral neuropathy, or symptoms of peripheral neuropathy, started during service and has been continuous since service discharge. The assertion that peripheral neuropathy had onset during service and has been continuous since service discharge is inconsistent with and outweighed by other lay and medical evidence of record more contemporaneous with service, including a February 1969 Report of Medical History on which the Veteran denied both neuritis and paralysis. Further, at the February 1969 Report of Medical Examination, the Veteran’s neurologic system was evaluated to be clinically normal. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the current neuropathy of the lower extremities is not caused by, or related to, an injury, disease, or event during service. While the Board finds it credible that the Veteran sustained back injuries during service, and the Veteran is competent to report that he has experienced symptoms of peripheral neuropathy since service, the Board finds that the weight of the lay and medical evidence shows that the current peripheral neuropathy of the bilateral lower extremities is not related to injuries that the Veteran sustained during active service. Service treatment records do not contain any complaints of or treatment for peripheral neuropathy of the bilateral lower extremities during service. While the February 1969 Report of Medical History at service discharge shows that the Veteran fell from a ship during service, it also shows that the Veteran denied neuritis and paralysis. A February 1969 report of Medical Examination shows that the neurological system was evaluated as clinically normal. A January 2020 VA examination shows that the Veteran was first diagnosed with peripheral neuropathy of the bilateral lower extremities in March 2016. The January 2020 VA examiner opined that peripheral neuropathy of the bilateral lower extremities is less likely than not related to service because the peripheral neuropathy of the bilateral lower extremities was diagnosed in March 2016, and the separation examination in February 1969 does not show evidence of any condition that correlates with the onset of peripheral neuropathy of the bilateral lower extremities during service. The weight of the evidence shows no chronic symptoms of peripheral neuropathy of the bilateral lower extremities during service or continuous symptoms of peripheral neuropathy of the bilateral lower extremities since service separation, or peripheral neuropathy of the bilateral lower extremities to 10 percent within one year of service. The records do not reflect any complaints of or treatment for peripheral neuropathy of the lower extremities until the Veteran filed a supplemental claim for peripheral neuropathy in June 2014, over 44 years after service discharge. The lay and medical evidence also weighs against a finding of continuous symptoms of peripheral neuropathy of the bilateral lower extremities since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either “chronic” in-service or “continuous” post-service symptoms, or symptoms manifest to 10 percent or more within one year of service discharge. As discussed above, neither the service treatment records, nor the physical examination performed at service separation indicate any history, findings, or diagnosis of peripheral neuropathy of the bilateral lower extremities. Rather, the evidence shows that symptoms of peripheral neuropathy were not manifest until many years after service discharge. The first credible complaints of peripheral neuropathy were in June 2014, over 44 years after service discharge. The approximately 44-year-period between service discharge and complaints of peripheral neuropathy is a factor that weighs against a finding of in-service incurrence, including by continuous symptoms since service from which service incurrence could be presumed. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The same evidence also shows that symptoms of peripheral neuropathy of the bilateral lower extremities did not manifest to a degree of 10 percent or more within one year of service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(a) is not warranted. Specifically, the medical and lay evidence reflects that the Veteran was first diagnosed with peripheral neuropathy many years after service discharge. As peripheral neuropathy did not manifest within one year of service separation, the criteria for manifestation of peripheral neuropathy to a compensable (i.e., at least 10 percent) degree within one year of service separation are not met. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. On the question of direct nexus between the current peripheral neuropathy and service, the Board finds that the preponderance of the lay and medical evidence is against a finding that the currently diagnosed peripheral neuropathy of the lower extremities is causally related to service. While the Board finds the Veteran competent to report symptoms of peripheral neuropathy during service, the weight of the evidence shows that symptoms of peripheral neuropathy began many years after service discharge, and that the Veteran was not diagnosed with peripheral neuropathy until over 46 years after service, in March 2016. As discussed above, service treatment records do not reflect any complaints or treatment for peripheral neuropathy during service. Rather, the record shows that the first complaints of peripheral neuropathy were in June 2014, over 44 years after service discharge. See June 2014 Veteran Supplemental Claim. Thus, after a review of all the evidence, lay and medical, the Board finds that the weight of the evidence shows that the current peripheral neuropathy of the bilateral lower extremities did not have onset during service, or within one year of service discharge, and is not otherwise related to service. As a result, service connection is not warranted on any basis. The weight of the competent and credible evidence of record demonstrates no relationship between the Veteran’s current peripheral neuropathy and active service. For these reasons, the Board finds that a preponderance of the evidence is against service connection for peripheral neuropathy of the bilateral lower extremities, and the claim is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.