Citation Nr: 20052005 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 06-25 179 DATE: August 5, 2020 ORDER Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected right knee disorder and/or prostate cancer residuals is denied. FINDING OF FACT The Veteran's current lumbar spine disorder, to include arthritis, is not related to his period of service nor is it etiologically related to his service-connected right knee disorder and/or prostate cancer residuals. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder, to include arthritis, have not been met. 38 U.S.C. §§ 1101, 1110, 1131(2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2019) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty from April 1961 to April 1965 in the U.S. Air Force, and from February 1967 to November 1973 in the U.S. Army. Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain chronic diseases, such as arthritis, will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. § 3.307. Service connection for the chronic diseases enumerated in 38 U.S.C. § 1101 may also be shown by lay evidence alone if the evidence shows a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2019); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran contends that he has a low back disability related to service. Specifically, according to the February 2002 claim, he indicated he injured his back in 1963 when radar equipment blew up. In the alternative, the Veteran contends that his claimed back disability is related to his service-connected right knee disability and/or his service-connected residuals of prostate cancer. Service treatment records reveal no complaints or findings of low back pain in service. At the time of the Veteran’s March 1967 report of medical history, he checked the “no” boxes when asked if he had or had ever had recurrent back pain; bone, joint, or other deformity; or arthritis or rheumatism. On his March 1969 report of medical history, the Veteran again checked the “no” boxes when asked if he had or had ever had recurrent back pain; bone, joint, or other deformity; or arthritis or rheumatism. At the time of a July 1972 annual examination report, normal findings were reported for the spine and lower extremities, with no complaints of back pain being noted at that time. There were no complaints or findings of back problems in the years immediately following service. During a March 2002 VA examination, the Veteran reported that he did things like B52 bomb navigator with the Air Force and tanker with the Army. He indicated that he had multiple falls, wrecks, injuries etc., which had resulted in constant pain throughout his body, to the point where now he was on morphine and had very limited activity. Following examination, a diagnosis of mechanical low back pain with no evidence of neurologic deficit was rendered. VA imaging studies in July 2017 reflect findings of osteopenia in the thoracic spine and mild retrolisthesis L2, narrowing of the lumbar disc spaces, mild anterior spurring of the lumbar spine. An impression of moderate to severe degenerative changes of the spine was recorded. Further, according to a January 2018 VA treatment report, it was noted that the Veteran had osteopenia after hormone treatment for prostate cancer. After finding that new and material evidence had been received to reopen the previously denied claim of service connection for a low back disorder in May 2018, the Board remanded this matter for further development, to include a VA examination. In an April 2019 opinion, as to the question of whether it was at least likely as not that any current low back disability was aggravated by the Veteran’s service-connected right knee arthritis or residuals of prostate cancer, the examiner indicated that the current back condition would be less likely as not aggravated by the Veteran’s service-connected right knee arthritis or residuals of prostate cancer. He observed that there was evidence of osteopenia noted in January 2018 due to hormonal treatment for his prostate cancer. This thinning of the bones would increase the risk for compression fractures but would not increase the risk of degenerative joint that was noted on imaging. He stated that the osteopenia would not affect the current back disability. He reported that after reviewing medical literature, degenerative arthritis was not noted to be a side effect of external beam radiation. The examiner was then asked whether it was at least likely as not that any current low back disability was caused by the Veteran’s service-connected right knee arthritis or residuals of prostate cancer. In response, the examiner indicated that the current back condition would be less likely as not aggravated by the Veteran’s service-connected right knee arthritis or residuals of prostate cancer. He observed that there was evidence of osteopenia noted in January 2018 due to hormonal treatment for his prostate cancer. This thinning of the bones would increase his risk for compression fractures but would not increase his risk of degenerative joint disease that was noted on imaging. He reported that the Veteran’s osteopenia would not affect his current back disability. The examiner was then asked to confirm whether the Veteran had a low back disability and opine as to whether it was at least as likely as not (i.e., 50 percent or greater probability) that any currently diagnosed low back disability was incurred during or was otherwise related to the Veteran’s period of active service or manifested within one year of the Veteran’s period of active service? The examiner indicated that the low back disability was less likely as not (i.e., 50 percent or greater probability) incurred during or otherwise related to the Veteran’s period of active service or manifested within one year of the Veteran’s period of active service. He stated that after review of the medical records, the records were silent for back pain in the service treatment records. In the April 2020 remand, the Board indicated that while the examiner provided the requested opinion, he did not provide any rationale as to why the Veteran’s service-connected right knee disorder did not cause or aggravate the Veteran’s current low back disorder. Moreover, as to the issue of whether the Veteran’s low back disorder was related to his period of service, the examiner only cited to the lack of treatment in the service treatment records as the basis for his opinion. The Board stated that as the VA examiner did not address the Veteran's assertions that his back disorder started in service, an opinion that addressed this had to be obtained. In the April 2020 remand, the Board further observed that service connection was also in effect for peripheral neuropathy of both lower extremities; loss of use of the feet; and a left hip joint fracture. It stated that as the matter was being remanded, the examiner was also requested to render an opinion as to any etiological relationship between any current low back disorder and these additional disabilities, to include by way of aggravation. In conjunction with the April 2020 remand, several opinions were obtained. The May 2020 examiner indicated that the claimed condition was less likely than not incurred in or caused by a claimed inservice injury, event, or illness. The examiner stated that the Veteran was given a diagnosis of degenerative arthritis of the spine during his prior examination. An earlier diagnosis from a 2016 exam revealed lumbosacral strain. He noted that the available medical records were limited in providing objective evidence that the degenerative arthritis was behaving aggressively or unnaturally. He observed that the Veteran was currently 78 years old and bone/joint degeneration was likely the result of normal wear and tear. He noted that the Veteran consulted with the VA in December 2019 and it was discussed that the MRI of the spine showed no significant disease. He noted that while the Veteran may have experienced low back pain in service, this was likely acute as the remainder of the records were limited in being able to demonstrate a persistent back pain since the one experienced while enlisted. The low back pain from service appeared to be of acute nature. Therefore, it was the examiner’s opinion that it was less likely than not that the Veteran's current degenerative arthritis of the spine first manifested in service, within a year after discharge, or was otherwise related to active service. The examiner further indicated that the claimed condition was less likely than not proximately due to of the result of the Veteran’s service-connected condition. It was noted that the Veteran was given a diagnosis of degenerative arthritis of the spine during his prior VA examination and that an earlier diagnosis from the 2016 VA exam revealed lumbosacral strain. He noted that the available medical records were limited in providing objective evidence that the degenerative arthritis was behaving aggressively or unnaturally, and that the Veteran was 78 years old and bone/joint degeneration was likely the result of normal wear and tear. He observed that neuropathies or arthritis of a lower joint did not cause degeneration of the lumbar spine. The Veteran consulted with the VA on December 2019 and it was discussed that the MRI of the spine showed no significant disease. Therefore, it was his opinion that it was less likely than not that the Veteran's current degenerative arthritis of the spine was proximately due to peripheral neuropathy, right lower extremity (sciatic nerve), peripheral neuropathy, left lower extremity (sciatic nerve), right knee arthritis, loss of use of feet, left hip fracture, S/P ORIF, with surgical scar, peripheral neuropathy, left lower extremity (femoral nerve), or peripheral neuropathy, right lower extremity (femoral nerve). The examiner further opined that the claimed condition was not at least as likely as not aggravated beyond its natural progression by a service-connected condition. It was noted that the Veteran was given a diagnosis of degenerative arthritis of the spine during his prior examination and that an earlier diagnosis from the 2016 VA exam revealed lumbosacral strain. The available medical records were limited in providing objective evidence that the degenerative arthritis was behaving aggressively or unnaturally. The Veteran was currently 78 years old and bone/joint degeneration was likely the result of normal wear and tear. It was again noted that the Veteran consulted with the VA in December 2019 and it was discussed that the MRI of the spine showed no significant disease. Therefore, it was his opinion that it was less likely than not that the Veteran's current degenerative arthritis of the spine was aggravated beyond its natural progression by his service connected loss of use of feet, peripheral neuropathy, right lower extremity (sciatic nerve), peripheral neuropathy, left lower extremity (sciatic nerve), right knee arthritis, peripheral neuropathy, left lower extremity (femoral nerve), peripheral neuropathy, right lower extremity (femoral nerve), and left hip fracture, S/P ORIF, with surgical scar. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against the conclusion that the Veteran's current low back disorder, to include arthritis, had its onset in service. Service treatment records reveal no complaints or findings of low back problems in service. On the Veteran’s reports of medical history, he checked the “no” boxes when asked if he had or had ever had recurrent back pain. The Veteran also checked the “no” boxes when asked if he had bone, joint or other deformity, or arthritis or rheumatism. Service examinations also revealed no complaints or findings relating to the lumbar spine. In addition, the Veteran was not found to have low back problems until many years following service. As such, the weight of the evidence demonstrates that the Veteran did not sustain a lumbar spine disorder or low back symptoms during active service. The Veteran has asserted that he has experienced low back problems since service. Such assertions, however, are inconsistent with, and outweighed by, other lay and medical evidence of record. The above evidence is more probative than are his assertions that any low back disorder is related to his period of service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). See also Maxson v. Gober, 230 F.3d 1330, 1333. For these reasons, the Board concludes that the assertions of low back symptoms since service are not credible. The Veteran has related his low back problems to his active service. While the Veteran, as a lay person, is competent to describe observable symptoms such as low back pain difficulties and while lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, an opinion as to the etiology and onset of a low back disorder, to include arthritis, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377, n.4 (lay persons not competent to diagnose cancer). The Veteran's lay statements on the question of relating the current low back disorders to service are not competent in the present case. See Davidson, 581 F.3d at 1316 (Fed. Cir. 2009); Kahana, supra. Such diagnoses require clinical or diagnostic testing that the Veteran is not competent to address. In the current case, the Veteran was not shown to have a low back disorder until many years following service. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran has not submitted any objective medical evidence or opinion that his current low back disorder is related to his period of service. In contrast, the May 2020 VA examiner opined that it was less likely than not that the Veteran's low back disorder was caused by or a result of an event in military service. This opinion was rendered following a comprehensive review of the file. The examiner provided detailed rationale to support the opinion. The Board finds this opinion to be of greater probative value regarding whether the Veteran's low back disorder, to include arthritis, is etiologically related to his period of service. In this case, a low back disorder, to include arthritis was not shown during active service or for many years thereafter, including no chronic symptoms during service, no manifestation to a compensable degree within one year of service separation, and no continuous post service symptoms. The weight of the competent evidence demonstrates that the currently diagnosed low back disorder, to include arthritis, was neither incurred in nor related to active service. As to the Veteran’s claim that his current low back disorder is caused and/or aggravated by his service-connected loss of use of feet, peripheral neuropathy, right lower extremity (sciatic nerve), peripheral neuropathy, left lower extremity (sciatic nerve), right knee arthritis, peripheral neuropathy, left lower extremity (femoral nerve), peripheral neuropathy, right lower extremity (femoral nerve), and left hip fracture, S/P ORIF, with surgical scar, residuals of prostate cancer, as noted above, while the Veteran, as a lay person, is competent to describe observable symptoms such as back pain and while lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, an opinion as to the etiological relationship between any current low back disorder, to include arthritis, and his service-connected disabilities, falls outside the realm of common knowledge of a lay person. The Veteran's lay statements on the question of relating the current low back disorder to any of his service-connected disabilities are not competent in the present case. Next, service connection may be granted when the evidence establishes a nexus between his service-connected disabilities and low back disorder, to include arthritis. The Veteran has not submitted any objective medical evidence or opinion to support this claim. In contrast, the VA examiners have opined that it was less likely than not that the Veteran's low back disorder, to include arthritis, was caused and/or aggravated by service-connected disorder. These opinions were rendered following a comprehensive review of the file. The examiner provided detailed rationale to support the opinion. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or misstated any relevant fact. The Board finds this opinion to be of greater probative value regarding whether the Veteran's claimed low back disorder, to include arthritis, is etiologically related to his service-connected loss of use of feet, peripheral neuropathy, right lower extremity (sciatic nerve), peripheral neuropathy, left lower extremity (sciatic nerve), right knee arthritis, peripheral neuropathy, left lower extremity (femoral nerve), peripheral neuropathy, right lower extremity (femoral nerve), and left hip fracture, S/P ORIF, with surgical scar, or residuals of prostate cancer. For these reasons, the Board finds that service connection for a low back disorder, to include arthritis, is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.