Citation Nr: 20044087 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 13-13 975 DATE: June 30, 2020 ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a left lower extremity disorder, to include as secondary to a low back disorder, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s low back disorder is related to service. 2. The preponderance of the evidence is against finding that the Veteran’s left lower extremity disorder is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left lower extremity disorder, to include as secondary to a low back disorder, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1962 to April 1965 in the U.S. Air Force. The Board thanks the Veteran for his service to our country. The issues of service connection for a low back disorder and a left lower extremity disorder were previously before the Board in April 2015, when the Board denied the claims. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2016 memorandum decision, the Court vacated and remanded the April 2015 Board decision for readjudication. The Board remanded this case in October 2017 for additional development and denied the claim in an August 2018 decision. Following the Veteran’s appeal to the Court, in a November 2019 memorandum decision the Court vacated and remanded the August 2018 Board decision, finding inadequate the Board’s statement of reasons and bases for concluding that the Veteran’s lay statements were less than credible. The case has now returned to the Board for further appellate review and readjudication. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also 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. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Decisions of the Board shall consider all information and lay and medical evidence of record in a case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). Competent lay evidence is 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 layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain clear conclusions with a reasoned medical explanation based on supporting data. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a low back disorder is denied. The Veteran contends that his low back disorder is related to an injury sustained in service. The Board finds that service connection for the disorder is not warranted. Alternative to the theory of direct service connection detailed above, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). According to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), § 3.303(b) equates “shown in service” with “a reliable diagnosis of the chronic disease while in service.” Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013). Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The Federal Circuit in Walker interpreted a “condition noted during service” as a condition that is “indicative of but not dispositive of a chronic disease.” Walker, 708 F.3d at 1340. In Savage v. Gober, 10 Vet. App. 488 (1997), the Court of Appeals for Veterans Claims (Court) noted that the principal definition of “noted” does not require a writing, citing Webster’s New World Dictionary which defines “noted” as “1 to pay close attention to; heed; notice; observe[;] 2 to set down in writing; make a note of.” The Court determined that while a noting need not be reflected in any written documentation other than as required to be included in the record, as to type of evidence, medical evidence of noting is required unless the condition is of a type as to which a lay person’s observation is competent. Savage, 10 Vet. App. at 496-97. In this case, the Veteran served as an aerospace ground equipment repairman. He stated that in 1963 he injured his back removing a 60- to 70-pound generator from a C-21/C-22 generator set. He stated that he reported the injury to his foreman who instructed him to figure out a way to complete his work without hurting his back, and that they developed a tool to remove the generator without the lifting that was required before. He submitted a newspaper photo showing him and another service member demonstrating their safety stand which was adopted for the flightline as well as a February 1964 certificate from the Air Force for a suggestion which was adopted and will contribute toward effective accomplishment of the mission. In a January 1965 service treatment record, a confinement physical returned within normal limits. In a March 1965 discharge report of medical history, the Veteran stated that his contemporaneous health was “good” and endorsed having or having had mumps, whooping cough, and frequent or severe headaches. He affirmatively denied having or having had arthritis or rheumatism; bone, joint, or other deformity; lameness; trick or locked knee; foot trouble; neuritis; and paralysis. In the physician’s summary and elaboration of pertinent data, the examiner noted that he had mumps and whooping cough in childhood, a history of frontal headaches since 1959, and that he denied all other significant medical or surgical history. In a March 1965 administrative discharge report of medical examination, a clinical evaluation showed normal lower extremities, spine and other musculoskeletal system, and neurological system. The examiner noted grades of 1s in all of the Veteran’s PULHES physical profile functions and again noted mumps and whooping cough in childhood, a history of frontal headaches since 1959, and that he denied all other significant medical or surgical history. The examiner concluded that there are no physical or mental defects warranting action under AFM 35-4. The Veteran’s service treatment records contain treatment notes for headaches and related vision and vertigo issues. There are no notations related to the Veteran’s back or left lower extremity. In a December 2002 private treatment note, the Veteran’s chief complaint was noted as “left side hurts, arthritis, back injury – 15 yrs ago.” He reported recurrent left flank pain with a sharp, burning sensation. A physical examination showed normal musculoskeletal and neurological systems but the treatment provider noted a swollen area to the left upper quadrant of the abdomen. The provider assessed his lower back pain as a possible hernia. A March 2003 VA CT scan report showed no evidence of an external hernia, but deficient muscle involving the left abdomen and thigh region were noted. An April 2003 note concluded that the Veteran’s pain was musculoskeletal in origin. In the Veteran’s May 2011 claim, he stated that after his August 1963 back injury, he did not report to sick call for the following years of service. He stated that his back problem reoccurred several times, even confining him to bed for a couple of weeks. He stated that he has visited several doctors and was informed by the first and subsequent doctors that he had tendon and ligament damage. In a July 2011 statement, the Veteran stated that he saw a chiropractor three times in 1969 but cannot recall the provider’s name; he sought treatment for his knee in 1975 to 1976 and was given a shot and pain medication; around the same time he was provided pain medication from a different provider for his back; he sought treatment in 1983 to 1983 for his back where he was X-rayed and prescribed muscle relaxers; and he sought treatment in 1986 to 1987 for his back with no results. He stated that there were many times when he probably should have sought treatment for his back but was prevented from doing so by financial issues. He stated that as the years have gone by, it takes less and less to aggravate his back problems. In a February 2012 VA form 21-4142, the Veteran listed various providers where he sought treatment for his lower back and knee, the earliest being a chiropractor in 1969. In an accompanying statement he stated that many of his post-service treatment records had been lost or destroyed due to the treatment providers’ deaths, retirement, or administrative records destruction of old records. In a May 2012 emergency department note, the Veteran reported left posterior rib tenderness and lower back pain for 8 years. He denied falls or trauma but stated that his back had hurt intermittently since being in the military. In a September 2012 statement, the Veteran stated that at his discharge physical he was not asked about any back problems. He stated that as the years have passed, his pain has worsened and is more frequent. He stated that his back problems acted up in 1969, 1976, 1982, 1985, 1986, 2002, and 2005. He stated that there are other times but he did not seek treatment due to financial issues and lack of insurance. In a February 2013 VA examination report, the Veteran was diagnosed with degenerative disc disease (DDD) and diffuse idiopathic skeletal hyperostosis (DISH). The Veteran reported his pain started in service when he heard “a snap” while removing a 70-pound alternator. He reported that he did not go for care and was better by the next day. He reported that he first had persistent back pain about 4 years after service. The examiner concluded that his back disorders are less likely than not related to service. The examiner reasoned that, though environmental and constitutional factors have been implicated, the effects are relatively minor, and recent studies suggest that DDD can be explained to a large degree by genetic factors. The examiner stated that the fact that the DDD affected all areas of the back, with the cervical spine most affected, supported a genetic etiology in the Veteran, as there were no complaints of in-service cervical spine injury. In a May 2013 letter from the Veteran’s private treatment provider, the provider noted the Veteran’s reports of a lower back injury in service, of which he informed his supervisor at the time. The provided noted the Veteran’s report of flares of back pain since then which would render him unable to work. The treatment provider concluded, “I have no reason to deny this did not happen while in the military.” To the extent this statement can be construed as relating the Veteran’s current disorder to an in-service injury, it is of little to no probative value as it is not supported by a rationale. In a May 2018 VA examination report, the Veteran was again diagnosed with DDD and DISH. The examiner noted that he served as an aerospace ground equipment repairman in service. The examiner noted that the earliest diagnosis of degenerative disc disease was in the 2000s, though the Veteran believes that it was in the 1970s. The Veteran reported that in service he was responsible for removing, repairing, and replacing an approximately 70-pound generator from an enclosed area which required him to get on his knees for its removal and replacement. He reported that that duty caused the acute onset of low back pain which was not accompanied by any radiating pain or numbness into the buttocks or legs at the time. He reported that it occurred on a Friday night and he did not go to sick call as he had a date that evening, that his date gave him two Midol tablets for his pain, and that by the next day he was better. He reported that after discharge he worked as a mechanic and other jobs that involved frequent bending at the waist, heavy lifting, and frequent heavy pulling or pushing maneuvers. The examiner noted letters of support documenting back complaints since the 1970s. The examiner indicated that the Veteran had bilateral radiculopathy of the sciatic nerve. The examiner concluded that the Veteran’s back disorder is less likely than not related to service. The examiner noted that there was no objective medical evidence during service or within one year of discharge for the diagnosis or treatment of a back disorder or chronic disability. Noting that the Veteran’s low back pain following the generator maintenance resolved within 24 hours, the examiner opined that the medical history as reported by the Veteran was more consistent with a muscle strain rather than a spinal or spinal disc injury: if there was a significant spinal disc injury that involved the protrusion of disc material or a traumatic subluxation in the spinal vertebrae, there would have been more pronounced and protracted pain duration than 24 hours. With respect to in service environmental and constitutional factors, acknowledging that the Veteran’s duties may have required heavy lifting, bending at the waist, and other activity, in the absence of evidence that the Veteran sought treatment for his back in service and as the Veteran’s duties did not involve any known trauma or more frequent pronounced stress on the low back and/or lumbosacral column arising from activities such as parajumping or road marches with heavy rucksack or backpack or body armor, the examiner concluded that his back disorder is less likely than not related to environmental and constitutional factors in service. The examiner also addressed the issue of genetic factors raised by the February 2013 examination report. The examiner stated that certain genetic allele alterations may be associated with a higher risk of developing DDD; however, without other chronic physical or mechanical factors, a predisposed individual may not become symptomatic, may be more mildly symptomatic, or may become symptomatic at a later age. The examiner stated that it would be impossible to predict who and when one may develop an associated spinal disease. Noting that there was no evidence of DDD until later in life, the examiner concluded that the Veteran does not have evidence of an injury or injuries significant enough to have shown changes in service or within one year of discharge. The examiner added that it is at least as likely as not that the Veteran’s post-service occupational duties were a causal factor in spinal disease, as he had worked many years as a mechanic after service with frequent heavy lifting, bending at the waist, and pushing and pulling. The examiner stated that studying the Veteran’s specific gene alleles to confirm whether he had the genetic factors predisposing him to a higher risk of developing DDD would not provide any further evidentiary weight as there is no evidence of causal physical or mechanical factors in service. Finally, the examiner addressed the issue of the Veteran’s cervical spine raised in the February 2013 VA examination report. The examiner stated that, as the previous examiner was retired, it would be speculation to determine why that examiner found that the cervical spine was most affected by DDD when radiological evidence showed DDD lower in the spine. However, the examiner noted that with spinal diseases symptoms may not necessarily correlate with radiographic findings. The examiner additionally noted that the presence of DDD in a man in his eighth decade of life would be more the norm than the exception. The Board finds the May 2018 medical opinions of a negative nexus between the Veteran’s current low back disorder and service highly probative as they are based on an in person examination and review of the record and include a rationale with citation to supporting factual data and reasoned medical explanations connecting the conclusion with the data. In an undated statement from the Veteran, he relayed his in-service injury and post-service medical history consistent with other statements of record. Additionally, he stated that several times “since [discharge] from the Air Force” his back would hurt and render him unable to work for days and sometimes weeks. The record contains multiple lay statements from the Veteran’s acquaintances regarding his back and left lower extremity disorder. In a July 2011 statement, an acquaintance S.H. stated that the Veteran has had a bad back since they first met in 1975 and that his left knee and leg began to hurt in “later years”; observations of a back disorder or back complaints prior to 1975 are not documented in these lay statements. The Board observes that, in response to a request for complete medical and dental records, all available records were furnished. The Board finds that, assuming arguendo that the Veteran sustained a low back injury in service from moving a generator and experienced intermittent pain until 1969, when it became more persistent, service connection for a low back disorder is not warranted. With respect to a theory of direct service connection, the Board finds that the preponderance of evidence is against finding that the Veteran’s low back disorder is related to his reported in-service injury or environmental or constitutional factors related to his in-service duties. The evidence of record shows that the Veteran would have had “pronounced and protracted” pain if he had sustained in service an injury severe enough to cause a spinal injury or spinal disc injury. However, while the Veteran states that he had intermittent pain during and after service until 1969, there is no evidence of, and he does not claim, any “pronounced and protracted” pain in service; indeed, by his reports his in-service back injury resolved within 24 hours after taking two Midol tablets. There are no in-service complaints of back pain or in-service findings, treatment, or diagnosis of arthritis or a back disorder. At discharge a clinical evaluation revealed a normal spine and musculoskeletal system. The Board acknowledges the Veteran’s statement that he was not asked about his back at his discharge physical but observes that in his report of medical history he affirmatively denied having arthritis or rheumatism or a bone, joint, or other deformity; additionally, he denied all other significant medical or surgical history other than mumps, whooping cough, and headaches. The Board finds the lack of in-service notations of pronounced and protracted back pain probative, as it is reasonable that he would have been placed on a profile for, sought treatment for, or reported at separation pronounced and protracted back pain lasting longer than 24 hours: in service, he sought treatment for frontal headaches and at his separation examination, in addition to a history of frontal headaches since 1959, he reported mumps and whooping cough in childhood. There is no competent scientific or medical evidence of record that the Veteran’s current low back disorder is related to the reported in-service back injury or in-service environmental or constitutional factors: while the May 2013 letter from the Veteran’s private provider stated that there was no reason to deny that the in service injury occurred, it did not provide a nexus between the injury and his current disorder. To the extent that the statement could be construed as a nexus statement, as noted above, it is of little to no probative value. With respect to a theory of entitlement on the basis of arthritis as a chronic disease, as there is no reliable diagnosis of arthritis in service, arthritis is not shown in service. Walker, 708 F.3d at 1335. Additionally, there is no condition noted in service or during the presumptive period as is required to show continuity of symptomatology. The Veteran is a layperson and does not profess to have the medical expertise required to determine whether his in-service symptoms are indicative of arthritis; accordingly, medical evidence of noting is required. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Savage, 10 Vet. App. at 496-97. However, there is no evidence of record that a condition indicative of arthritis was paid close attention to, heeded, noticed, observed, set down in writing, or made a note of in service or during the one-year presumptive period following discharge; indeed, the Veteran stated that he did not go to sick call for his back in the years following his injury. The Board observes that the only competent medical evidence of record identified his in-service injury as a muscle strain. The Veteran’s attorney contends that the May 2017 VA examination report is inadequate as the examiner relied on a lack of treatment records in service and within one year from separation. The attorney additionally contends that the examiner’s determination that the in-service injury was more consistent with a muscle strain than a spinal injury or spinal disc injury was also based on the lack of service treatment records. However, in addition to the fact that the examiner did not rely solely on the lack of treatment records in rendering the negative nexus opinion, the examiner provided an adequate basis for the determination that the injury sustained in service was a muscle strain rather than a spinal injury or spinal disc injury: such a spinal injury or spinal disc injury would have manifested in pronounced and protracted pain lasting longer than 24 hours; however, the Veteran only reported pain that resolved within 24 hours, there are no in-service notations pronounced and protracted pain, and the Veteran does not claim pronounced and protracted pain in service but rather stated that he experienced such pain “since [discharge] from the Air Force.” The attorney noted that, while the examiner noted that the Veteran’s duties in service may have required heavy lifting, bending at the waist, etc., the examiner rendered a negative opinion with respect to environmental or constitutional factors in the absence of in-service notations of a back disorder. The attorney stated that this is contrary to the evidence of record, but did not explain this conclusion. As noted above, however, in addition to the fact that he did not claim to experience pronounced and protracted pain in service but relayed experiencing such pain since discharge, the Board finds lack of treatment records for pronounced and protracted back pain to be a reasonable basis for the examiner’s opinion. The attorney also seems to contend that, as the Veteran’s duties in service and after service were similar in that they involved heavy lifting, bending at the waist, and frequent pushing and pulling, his in-service duties contributed to physical and mechanical factors which, combined with genetic predisposition, led to a spinal disease. However, the preponderance of evidence is against finding that causal physical and mechanical factors occurred in service. As the examiner stated, without causal factors a predisposed individual may not become symptomatic, may be more mildly symptomatic, or may become symptomatic at a later age. Yet the Veteran does not claim and the evidence does not support that he experienced pronounced and protracted pain evidencing a spinal or spinal disc injury in service; by the Veteran’s report, such pain did not arise until after discharge. The examiner additionally states that the examiner failed to take into consideration the Veteran’s reports and buddy statements of injury in service and pain after service; however, the examiner noted the Veteran’s report of in-service injury and lay statements from acquaintances, none of which recorded observed back pain prior to the 1970s. Finally, the attorney contends that the examiner failed to discuss the February 2013 examiner’s finding regarding the cervical spine; as detailed above, the examiner did discuss this. Hence, after reviewing all the evidence of record, even assuming arguendo that the Veteran sustained a back injury in service and experienced intermittent pain until 1969, when the pain became more persistent, the Board finds that the preponderance of the evidence is against finding that service connection for a low back disorder is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a left lower extremity disorder, to include as secondary to a low back disorder, is denied. The Veteran contends that a left lower extremity disorder is secondary to his low back disorder. He stated that he cannot lift up his leg and has to climb stairs one at a time, he falls if he stumbles or bumps his left foot, and that he has fallen several times due to his knee giving out. The Board finds that service connection for a left lower extremity disorder is not warranted. Alternative to the theory of direct service connection, service connection is also warranted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To establish secondary service connection there must be evidence: (1) of a current disability (for which secondary service connection is sought); (2) of an already service-connected disability; and (3) that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). While radiculopathy was noted in the May 2018 thoracolumbar spine VA examination report, as service connection for a back disorder is not warranted, service connection for a left lower extremity disorder secondary to a back disorder is not warranted. With respect to a theory of direct service connection, the Veteran does not contend, and the evidence does not support, that a left lower extremity disorder was incurred in service. Service treatment records are negative complaints regarding the left lower extremity, a clinical evaluation at discharge showed normal musculoskeletal system and lower extremities, and he affirmatively denied a bone, joint, or other deformity; lameness; trick or locked knee; neuritis; foot trouble; and paralysis. There is no evidence of record of a left lower extremity disorder within a year after discharge; rather, in the July 2011 statement, S.H. stated that the Veteran’s left leg began to hurt years after they met in 1975. The Board notes that the Veteran has not been afforded an examination to determine the nature and etiology of a left lower extremity disorder. In certain circumstances VA bears a duty to assist the Veteran. 38 C.F.R. § 3.159. VA must provide a medical examination or obtain a medical opinion if there exists (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence of an in-service event, injury, or disease; and (3) an indication that the current disability may be associated with the Veteran’s service or another service-connected disability; but (4) there is otherwise insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). While the third factor creates a low threshold and evidence “indicating” that a condition “may be” associated with service need be neither medical nor competent, conclusory testimony suggesting the existence of a nexus is not sufficient; a factual basis is required. Id. at 83; see Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). As detailed above, however, a review of the record reveals no evidence indicating that an association may exist between an in service event, injury, or disease or a service-connected disability. Accordingly, the Board finds that the preponderance of the evidence is against finding that service connection for a left lower extremity disorder is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the   record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, Associate 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.