Citation Nr: 20038066 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 20-11 970 DATE: June 3, 2020 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for bilateral lower extremity radiculopathy, claimed as a left leg injury with pain and right leg pain, is denied. FINDINGS OF FACT 1. A back disability was not manifest in service and is not otherwise attributable to service; arthritis was not manifest within one year of separation from service. 2. Bilateral leg disabilities, diagnosed as bilateral radiculopathy, were not manifest in service and are not otherwise attributable to service; an organic disease of the nervous system did not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by service and lumbar spine arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   2. Bilateral leg disabilities were not incurred in or aggravated by service, nor may an organic disease of the nervous system be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1960 to April 1962. Service Connection Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present 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” – the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disease, including arthritis and organic diseases of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease listed in 38 C.F.R. § 3.309 (a), is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). 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. See 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a): Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Back disability The Veteran seeks service connection for a lower back disability he contends is due to an in-service truck accident. The Board concludes that service connection for a lower back disability, including arthritis, is not warranted. Service treatment records show the Veteran was seen for low back pain in November 1961. The Veteran denied any relevant history in the February 1962 Report of Medical History but did report foot trouble. The February 1962 Report of Medical Examination shows defects were a tattoo on his left upper arm and asymptomatic flat feet. Private treatment records show that, in December 2009, the Veteran had an appointment with a Dr. J.L.G. where he complained of pain starting at the top of the buttock and radiating bilaterally into his thighs. He denied significant low back pain but reported that “years ago” he used to suffer from episodic back pain. MRIs showed disk thinning at the L3-L4 interspace and significant bilateral facet arthropathy at the L4-L5 level resulting in moderately severe central and foraminal stenosis. The Veteran was diagnosed with L4-L5 facet arthropathy with stenosis with lumbar claudication. See December 2009 Private Treatment Records. August 2010 CT scans and MRIs showed significant L4-L5 facet arthropathy, a large spur off the medial right L4-L5 aspect compressing the right L5 root, foraminal stenosis with potential impingement of the L4 root, posterior disk bulging, advanced L3-L4 disk space narrowing, mild facet arthropathy and central and foraminal stenosis, and multilevel degenerative disk disease. November 2010 records show the Veteran underwent bilateral L4-L5 interlaminar spinal decompression surgery with interspinous process fixation and a posterior bone fusion to treat his radiculopathy. The Veteran was afforded a VA back conditions examination in January 2020. The examiner noted diagnoses of degenerative arthritis of the spine and spinal stenosis. The Veteran reported an onset of back pain in 1961 when he was thrown forward in a truck and hit his back against the truck, resulting in pain. He reported that for the remainder of his time in service, at the time of discharge, and to the present time his back pain had been the same. He also noted that it was hard to remember. He stated that the only time he went for treatment was in 2009 for intermittent back pain that over time became severe and that he underwent surgery in 2010 that improved the symptoms. He stated that he now has occasional back pain improved by his back brace and increased with bending or lifting. On examination pain was noted on right and left lateral flexion. There were decreased ankle reflexes and decreased sensation to light touch in both feet. Bilateral lower extremity numbness was noted. The examiner concluded that the Veteran’s lumbar spinal stenosis status post laminectomy with stabilization was less likely related to an in-service injury 59 years ago. The examiner explained that the objective evidence does not support any chronic back condition that began in service or within 1 year of discharge or persisted to the present condition. The examiner noted that the 2009 private initial evaluation documents onset of his symptoms to 4 months prior to visit. See January 2020 VA Examination. The Board accepts that the Veteran injured his back during service. Service treatment records show he was seen for lower back pain in November 1961, and the Veteran is competent to report that which he experiences, including the truck accident and back injury. See Layno, 6 Vet. App. at 470 (1994); Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007). However, the Board concludes the evidence is against finding a nexus between his in-service back injury and his current lower back pathology, including arthritis. Regarding the January 2020 VA examination and opinion, for a medical opinion to be given weight, it must be (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. Id. at 304. Here, the Board affords significant probative weight to the January 2020 VA opinion. The examination was based on a review of the claims file and an interview of the Veteran. The rationale included the Veteran’s prior statements that dated the onset of his symptoms to 2020 and that the in-service injury had occurred many years prior. Additionally, the VA examiner's opinion is consistent with the Veteran's documented medical history, which is absent any report of symptomatology for many years after active service. Consequently, the Board finds this report to be highly probative. There is no positive nexus opinion of record. The Board has also considered the Veteran’s contentions. He has maintained throughout the period on appeal that his current lower back symptoms and pathologies are related to an in-service truck accident and that he has had back pain since discharge. The provisions of 38 C.F.R. § 3.303 (b) relating to chronicity and continuity of symptomatology in establishing service connection apply to those chronic conditions, such as arthritis, specifically listed in 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). Although the Veteran has reported that he has had constant lower back pain since his in-service injury, he stated in the January 2020 that it was hard for him to remember. In addition, he denied continuous lower back pain in December 2009, stating that although he had intermittent low back pain years before. The Board notes the Veteran is competent to report his symptoms. Here, at separation, he denied a history of arthritis, bone, joint or other deformity. Further, he reported that he was in good health. Such statements are inconsistent with any assertion of on-going pathology. Furthermore, despite his complaint of in-service back pain, arthritis was not “noted,” diagnosed or manifest during service or within one year of separation. Rather, the medical evidence does not show arthritis until multiple decades after the Veteran’s separation from service. Consequently, the Board does not find his current lay reports of a continuity of symptomatology credible. The record does not show a manifestation of lower back pain or arthritis for nearly fifty years after separation. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, a lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s statements. Id. The Veteran has stated that he was not treated for low back pain until 2009. The Board understands that the Veteran’s lumbar spine stenosis and degenerative disk disease did not manifest when he sought treatment in 2009. However, there is little probative evidence showing a nexus between his service and the diseases identified by Dr. J.L.G. in 2009 and 2010. Despite a brief period of in-service complaints of low back pain, the evidence establishes that he did not have arthritis during service, and there is no evidence that arthritis manifested within one year of separation. In sum, the evidence shows that the Veteran complained of back pain once during service. however, there is little probative evidence suggesting his current low back pathology, including arthritis, is related to his service. The preponderance of the evidence is against the claim for service connection for a low back disability. The benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Bilateral leg disabilities The Veteran contends he has bilateral leg disabilities manifest by pain that are related to his service. For the following reasons, the Board concludes service connection for a left or right leg disability is not warranted. Service treatment records show the Veteran complained of a painful right knee in April 1961. He denied any relevant history in the February 1962 Report of Medical History but did report foot trouble. He denied a history of a trick or locked knee, lameness, arthritis and bone, joint or other deformity. He reported that he was in good health. The clinical evaluations in the February 1962 Report of Medical Examination are blank and the only defects noted were a tattoo on his left upper arm and asymptomatic flat feet. Private treatment records document the Veteran’s history of leg pain and radiculopathy. In December 2009 the Veteran complained of a four-month history of pain starting at the top of the buttock and radiating bilaterally into his thighs. His symptoms were worse on the right side. November 2009 MRIs showed disk thinning at the L3-L4 interspace and significant bilateral facet arthropathy at the L4-L5 level resulting in moderately severe central and foraminal stenosis. The Veteran was diagnosed with L4-L5 facet arthropathy with stenosis with lumbar claudication “almost certainly related to” the radiologic findings of L4-L5 stenosis. At an August 2010 followup appointment, the Veteran reported continued to have pain radiating into both buttocks and legs, more severe on the right side. August 2010 CT scans and MRIs showed significant L4-L5 facet arthropathy, a large spur off the medial right L4-L5 aspect compressing the right L5 root, foraminal stenosis with potential impingement of the L4 root, posterior disk bulging, advanced L3-L4 disk space narrowing, mild facet arthropathy and central and foraminal stenosis, and multilevel degenerative disk disease. The Veteran was diagnosed with L4-L5 radiculopathy. November 2010 records show the Veteran underwent bilateral L4-L5 interlaminar spinal decompression surgery with interspinous process fixation and a posterior bone fusion to treat his radiculopathy. December 2011 followup notes show the Veteran was doing very well, denied any significant back or leg pain, and was then asymptomatic. The Board has considered the Veteran’s recent lay statements to the effect that he has had pain in his legs since service and shortly thereafter. The Veteran is competent to report his symptoms and observations of pain in his legs. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Although the Veteran has reported constant leg pain since service, the Board finds the service treatment records and the 2010 private medical records more probative than the Veteran’s lay statements. While the Veteran was seen for right knee pain   during service, only asymptomatic flat feet and a left upper arm tattoo were noted on the separation examination. He reported foot trouble at separation, but denied swollen or painful joints, cramps in his legs, a trick or locked knee, any arthritis or other bone or joint deformity, or lameness, and reported that he was in good health. In addition, in December 2010 he reported that his leg pains had begun four months prior. Such evidence is inconsistent with the more recent assertions of on-going leg pain since service. Despite his complaint of in-service knee pain, radiculopathy was not “noted,” diagnosed, or manifest during service or within one year of separation. Rather, the medical evidence does not show radiculopathy until multiple decades after the Veteran’s separation from service. To the extent the Veteran claims his leg pain began in service, such statements are contradicted by the remainder of the record. Consequently, the Board does not find his current lay reports of a continuity of symptomatology credible. The Board acknowledges the Veteran’s radiculopathy is caused by his lower back arthritis and stenosis. However, the Board has denied service connection for a back disability, and service connection is therefore not warranted for radiculopathy as secondary to a back disability. See 38 C.F.R. § 3.310. In sum, medical and lay evidence establishes a remote onset of the Veteran’s current bilateral leg pathology. Radiculopathy did not manifest during service or within one year of separation. Although the Veteran was seen for right knee pain   during service, there is no evidence that his current symptoms are related to the in-service pain. The preponderance of the evidence is against the claim for service connection for bilateral leg disabilities. The benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.