Citation Nr: 20054052 Decision Date: 08/14/20 Archive Date: 08/14/20 DOCKET NO. 13-26 543 DATE: August 14, 2020 ORDER Service connection for a lumbar spine disorder, to include degenerative arthritis, is denied. Service connection for a sleep disorder is denied. REMANDED Service connection for a right knee disorder is remanded. Service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. The Veteran had active service from September 1971 to April 1973. 2. A lumbar spine disorder, to include degenerative arthritis, was not shown in service, was not shown to a compensable degree within one year of separation from service, was not continuous since service, is not causally or etiologically related to service, and was not caused or permanently worsened by a service-connected disability. 3. A sleep disorder has not been shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310, (2019). 2. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310, (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, this case was previously before the Board on multiple occasions, most recently in February 2020, at which time the claims currently on appeal were remanded for further development. The case has now been returned to the Board for additional appellate action. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). This presumption may also be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Lumbar Spine Disorder As an initial matter, degenerative arthritis of the lumbar spine is a chronic disorder under 38 C.F.R. § 3.309(a); as such, presumptive service connection on the basis of continuity of symptomatology is for application. Furthermore, he has argued that his lumbar spine disorder stemmed from his service-connected flat feet. Accordingly, secondary service connection will be addressed. Finally, direct service connection will be discussed. Turning first to direct service connection, the Veteran has been diagnosed with a lumbar spine disability. Specifically, a June 2018 VA examination diagnosed degenerative arthritis of the spine. As such, a current disorder has been shown and the first element of service connection has been met. A review of the Veteran’s service treatment records (STRs) reveals that his spine and musculoskeletal system was found to be clinically normal in multiple medical examinations, to include his March 1973 separation examination, and that he consistently asserted in associated reports of medical history that he did not have or had not had recurrent back pain. The STRs are otherwise silent for complaints, treatment, or diagnoses of a lumbar spine disorder. As such, the second element of service connection- in-service incurrence- has not been shown, and the medical evidence does not support service connection on a direct basis. Turning to presumptive service connection, the disorder did not manifest in-service or to a compensable degree within a year of his separation from service. In a February 2017 medical treatment note, the Veteran reported experiencing low back pain for about a year. In a subsequent June 2018 VA examination, he indicated that his lumbar spine disorder began in the 1990s. Even assuming that he developed a lumbar spine disorder in the 1990s, this is outside the one-year legal presumption for certain chronic diseases such as degenerative arthritis. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). As noted above, the evidence shows that the symptoms of the Veteran’s lumbar spine disorder began, at the earliest, in 1990, 17 years after his separation from service. Therefore, a lumbar spine disorder was not shown until 1990 with documentation beginning in 2017. In light of the above, the medical evidence does not support the claim for presumptive service connection for a lumbar spine disorder based on chronicity or continuity of symptomatology. Further, the evidence does not support the claim based on secondary service connection. While there is evidence of a current disability (lumbar osteoarthritis) and evidence of a service-connected disability (pes planus), the medical evidence does not establish a nexus between the two. Specifically, in a June 2018 VA examination, the examiner opined that the Veteran’s lumbar spine disorder was less likely than not proximately due to or the result of his service connected pes planus, explaining that the medical research available did not indicate that pes planus could lead to a chronic back condition. The examiner further noted that medical research specifically did not find an association between foot posture and low back pain. Additional post-service records fail to establish a relationship between a lumbar spine disorder and service-connected pes planus. The Board acknowledges that in the February 2020 Board remand, the Board found the rationale in support of the June 2018 opinion addressing secondary service connection was insufficient. In the remand directives, the Board ordered a new examination and requested opinions addressing whether the Veteran’s service-connected foot or ankle disabilities caused or aggravated the back disorder. The Board also requested an opinion addressing whether the back disorder was directly related to service. The requested examination was conducted in April 2020; however, the Veteran told the examiner that he was not claiming service connection for a back condition. As such, the examiner did not provide the requested opinions. Given the Veteran’s response to the examiner, the Board finds that additional development is not warranted on this matter. The Board has considered the Veteran’s lay statements regarding the etiology of the disabilities discussed above. He is competent to report symptoms and describe his observations because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer opinions as to the etiology of his current disorders due to the medical complexity of the matters involved. Accordingly, the Board finds that the preponderance of the evidence is against the claim. The appeal is denied. Sleep Disorder In addition to the above, for a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporaneous to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The record does not show that the Veteran has a confirmed diagnosis of a sleep disorder. To that end, the Veteran reported in an August 2013 Social Security Administration (SSA) evaluation that he suffered from unusual fatigue and required naps and rest once a day for one hour per day. However, the SSA examiner did not diagnose a sleep disorder. In subsequent May 2019 and January 2020 medical treatment notes, the Veteran similarly reported feeling tired and being unable to sleep. However, a sleep disorder was not diagnosed. The Board acknowledges that the Veteran claimed in a May 2017 statement that his sleep disorder was the product of his lumbar spine disorder. He is competent to report symptoms and describe his observations of his sleep disorder because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to diagnose his sleep symptoms or offer opinions as to the etiology of his current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and by STRs and clinical records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Based on the foregoing, without a current diagnosis of a sleep disorder, service connection is not warranted under any theory of entitlement. As noted above, service connection may only be granted for a current disability. Since there is no confirmed current diagnosis of a sleep disorder, secondary service connection is not applicable and service connection is not otherwise warranted. Accordingly, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In a February 2020 remand, the Board found that a prior VA examination failed to consider the relationship between right and left knee disorders and service-connected ankle disorders, and that the prior examiner’s opinions as to direct service connection were vague. The Board instructed the RO to obtain examinations to determine whether the Veteran’s right and left knee disorders were either etiologically related to service or caused or aggravated by a service-connected disability. In a March 2020 examination, the examiner opined that the Veteran’s right and left knee disorders were less likely than not incurred in active service. The examiner additionally offered that his right knee disorders were less likely than not caused or aggravated by service-connected pes planus or ankle disorders. However, the rationales were again insufficient for rating purposes. Specifically, the examiner remarked that, while pes planus could contribute to knee pathology, a work injury was noted as a direct etiology. The examiner stated that, since there was a “clear etiology” for his right knee disorder, it was “very unlikely that a secondary condition (bilateral ankle strain) would cause another secondary condition (right knee pain).” Furthermore, the examiner completely neglected to address whether the Veteran’s left knee disorder was the result of a service-connected disorder and whether his left and right knee disorders were aggravated beyond their natural progression by a service-connected disorder. Accordingly, further medical opinions are regrettably required to determine the nature and etiology of his bilateral knee disabilities. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record and associate them with the claims file. 2. Direct the claims file to a clinician to determine the nature and etiology of the Veteran’s right and left knee disorders. The clinician is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s right knee disorder: (a.) Was incurred in or caused by service; (b.) Was proximately due to or the result of a service-connected disability, to specifically include pes planus and bilateral ankle strains; and (c.) Was aggravated beyond its natural progression by a service-connected disorder, to specifically include pes planus and bilateral ankle strains. Separate opinions with supporting rationale must be provided addressing causation and aggravation as it pertains to the feet and ankles. The clinician is also asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s left knee disorder: (a.) Was incurred in or caused by service; (b.) Was proximately due to or the result of a service-connected disability, to specifically include pes planus and bilateral ankle strains; and (c.) Was aggravated beyond its natural progression by a service-connected disorder, to specifically include pes planus and bilateral ankle strains. Separate opinions with supporting rationale must be provided addressing causation and aggravation as it pertains to the feet and ankles. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinions. (Continued on the next page)   A clear and thorough rationale that fully explains the basis for all opinions rendered must be provided. If the examiner is unable to provide an opinion he or she should explain why. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of the Veteran’s claim or whether additional information could be obtained that would lead to a conclusive opinion. 3. Then, readjudicate the Veteran’s claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. AMANDA G. ALDERMAN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.