Citation Nr: 21000435 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-08 799 DATE: January 5, 2021 ORDER Entitlement to service connection for low back disability is denied. Entitlement to service connection, to include on a secondary basis, for sciatic nerve disability is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for left knee disability, to include a total knee replacement is remanded. Entitlement to service connection, to include on a secondary basis, for right knee disability, to include a total knee replacement is remanded. FINDINGS OF FACT 1. The Veteran’s low back disability did not originate in service and is not otherwise related to his military service. 2. The preponderance of the evidence is against a finding that the Veteran has a formal diagnosis of a sciatic nerve disability. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for sciatic nerve disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to August 1995. These matters came before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and his wife testified at a hearing before a Decision Review Officer (DRO) in October 2011. A transcript of the hearing is of record. In May 2014, the Board denied these claims. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims Court (Court) and in a November 2015 Memorandum Decision, the Court vacated the Board’s May 2014 denial. The Board then remanded these matters in May 2016. Thereafter, a July 2017 Board decision denied the Veteran’s service connection claims for bilateral total knee replacement, low back disability, and sciatic nerve disability. The Veteran appealed the July 2017 Board decision to the Court. In May 2018, the Court granted a Joint Motion for Remand (JMR) and remanded the claims to the Board for action consistent with the Joint Motion. The Board then remanded these matters again in February 2019. Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for low back disability. Entitlement to service connection for sciatic nerve disability. The Veteran contends that his low back disability and claimed sciatic nerve disability had its onset during active service. Specifically, the Veteran argues that preforming exercises in Germany during active service caused his low back disability. The Veteran further stated that overall his general duties during active service caused his disabilities to worsen over time. See October 2011 Hearing Testimony. The Veteran’s service treatment records (STRs) are absent for complaints, treatment, or diagnoses of a low back disability or of radiating pain to the lower extremities. In June 1980, the Veteran’s entrance report of medical history noted that the Veteran was in good health with no recurrent back pain and no neuritis. See June 2016 STR – Medical. In a July 1989 STR, the Veteran reported pain in his left shoulder and the reviewing provider noted upper thoracic spine paravertebral muscle spasm. See June 2016 STR – Medical. An August 1992 STR noted the Veteran’s right thigh pain that was aggravated when walking and running. The STR noted an assessment of pulled hamstring. A subsequent August 1992 STR noted a recheck of the Veteran’s right pulled hamstring indicated the condition had resolved and that the Veteran was back to full activity. See June 2016 STR – Medical. In January 1994, the Veteran complained of right hip pain lasting one week and the reviewing provider noted an assessment of hemorrhoids. A February 1995 STR noted the Veteran’s pain in his left shoulder, left neck, and left upper back. In the Veteran’s February 1994 retirement report of medical history, the Veteran denied a history of recurrent back pain or neuritis. In his retirement report of medical examination, dated February 1994 and May 1995, the examiner noted the Veteran’s spine and neurologic system was normal on clinical evaluation. A review of the post-service record shows that the first indication of any low back complaints or sciatic nerve disability was in his February 2010 claim and initial treatment records noting a back complaint and sciatic nerve complaints was in the July 2016 VA examination. See February 2010 Third Party Correspondence and July 2016 C&P Exam. In October 2011, the Veteran testified at a DRO hearing regarding his low back and sciatic nerve, stating that he felt radiating pain that would start from his low back into his lower extremities. See October 2011 Hearing Testimony. The Veteran attributed his low back condition to his time in Germany and stated that the treatment at that time was a heat pad. In January 2012, the Veteran submitted a letter written by himself and signed by his private physicians. See January 2012 Correspondence. The letter, in pertinent part, addressed his sciatic nerve condition, stating that it was more likely than not that this condition occurred while in military service. In August 2012, the Veteran submitted a personal statement, arguing that conditions such as his frequently did not become severe until years after a veteran left service. See August 2012 Correspondence. In July 2016, the Veteran underwent a VA examination for his low back condition. See July 2016 C&P Exam. The examiner diagnosed degenerative arthritis of the lumbar spine. The Veteran reported chronic low back pain, greater on the left side compared to the right, and left leg pain. The Veteran stated that these symptoms began around 1981 or 1982; however, he could not recall a specific injury and said that the back problems began gradually. The Veteran recalled taking ibuprofen for the back pain but did not have physical therapy, and believed that he may have also had a steroid injection in the back. The Veteran currently reported a stretching sensation and knot in the lumbar area along with a sharp stabbing pain. He said that his back pain was constant and occasionally he experienced pain in the left leg which he attributed to his back. The Veteran denied seeing a doctor for his back pain and self-medicated with aspirin and hydrocodone. The examiner noted that the Veteran was diagnosed with muscle spasm of the thoracic spine in July 1989 based on an upper thoracic spine paravertebral muscle spasm. The examiner opined that it was less likely than not that the Veteran’s current lumbar spine condition and radicular symptoms were incurred in or caused by military service. The examiner reasoned that a review of medical records showed that the Veteran reported back symptoms, including a week long period of low back pain in January 1994, but denied recurrent back pain in February 1994. The examiner stated that the Veteran’s current back condition was degenerative in nature and was related to aging and that there was no evidence of degenerative disease during active service. In February 2017, an opinion was provided to clarify the July 2016 back VA examination, since the July 2016 examination did not address the sciatic nerve. See February 2017 C&P Exam. The examiner opined that the low back and sciatic nerve condition were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that a review of medical records revealed that the Veteran reported a week long period of back pain during active service, but denied ongoing back pain in a subsequent service treatment record. The examiner explained that the July 2016 report gave a diagnosis of mild left lower extremity radiculopathy which involved the sciatic nerve. The examiner stated that the radicular symptoms were the result of degenerative disease of the spine which was not present during active service. Thus, the examiner said that the current lumbar spine condition and the radicular symptoms involving the left sciatic nerve were the result of degenerative disease which developed after the Veteran left service as a result of aging and not as a result of any event during active service. The Board notes that the Court found these opinions inadequate in a May 2018 JMR. See May 2018 Court Documents – General. The May 2018 JMR highlighted the July 2016 VA examiner’s finding that the Veteran complained about back pain for a week in 1994; and noted his STRs do not show this, thus indicating the VA examiner may have based the opinion on an inaccurate factual premise. The May 2018 JMR also found the examiner did not provide any discernable rationale to support the conclusion that the Veteran’s current back condition is degenerative in nature and is related to aging. The February 2019 Board remand also noted the February 2017 VA examiner stated the Veteran only had left lower radiculopathy despite the July 2016 VA examiner’s finding of moderate numbness in both lower extremities and mild intermittent pain in the right lower extremity. See February 2019 BVA Decision. The Board remanded the issues on appeal, in pertinent part, to obtain adequate VA opinions regarding the low back disability and sciatic nerve disability etiologies, to include consideration of the in-service complaints of right thigh pain and right hip pain as possibly related to the claimed sciatic nerve condition. A November 2018 VA treatment record noted the Veteran’s reports of low back pain since approximately 1994. He denied injury and reported the pain came and went but was gradually worsening. He reported that since around 2005, the pain started to radiate to his bilateral lower extremities, radiating to his feet. The record noted that NCS/EMG studies were performed. The record noted that despite the Veteran’s chronic signs and symptoms of radiation of the low back pain into the right and left lower limb, the electrodiagnostic studies performed did not support a peripheral nerve etiology. See November 2019 CAPRI. VA addendum opinion was obtained for the claimed sciatic nerve disability and low back disability in December 2019. See December 2019 C&P Exam (2). The VA examiner opined that the low back disability and claimed sciatic nerve disability were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted regarding the claimed sciatic nerve disability that symptoms were subjective only. The examiner noted the 2018 EMG did not support a diagnosis of radiculopathy and noted that during service, STRs noted thoracic (not lumbar) muscle strain condition that was acute. The examiner noted that while on active duty, there was no chronicity of care for a lumbar condition documented. The examiner acknowledged the right thigh complaints during active service but noted this was ultimately diagnosed as hamstring strain, not radiculopathy, and indicated these records were silent for back complaints. The examiner also acknowledged the right hip complaint during active service but noted that this was diagnosed as a hemorrhoid, not radiculopathy, and indicated these records were silent for back complaints. The examiner noted that there was no evidence of chronicity of care for a back condition or diagnosis noted in VA notes in 2002 despite an opportunity to have complaints documented, and that it was not until 2016 that an x-ray showed arthritis of spine. The examiner reiterated the 2018 EMG that showed no evidence of radiculopathy (sciatica), noted there was no additional treatment evidence submitted since 2017 to support the Veteran’s statement of chronicity of care for a lumbar condition or radicular condition on or after active duty, and found that a nexus had not been established for these conditions. The examiner noted that it was not until 2016 when a chronic low back condition was diagnosed. Ultimately, the Board finds that December 2019 VA opinion is probative as it is based on an accurate medical history, detailed review of the claims file, consideration of the Veteran’s statements, and provides an adequate rationale that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As detailed below, the preponderance of the evidence is against these claims. Here, the Veteran’s STRs do not show complaints, treatment or diagnosis for a low back disability or claimed sciatic nerve disability. Instead, the STRs noted the Veteran’s other musculoskeletal related treatments, to include shoulder complaints, upper back and neck complaints, and ankle complaints. This would suggest that if the Veteran had a low back or radicular/sciatic nerve-related complaints, he would have reported such symptoms. His reports of thigh and hip pain were evaluated and attributed to a pulled hamstring/hemorrhoids, not sciatica. In fact, on this February 1994 retirement report of medical history, the Veteran denied a history of recurrent back pain or neuritis. Accordingly, the most probative contemporaneous evidence of record is void of any such reports until his formal claim for entitlement to service connection for these issues in 2010. The Board highlights intermediate VA treatment records that also do not include any such complaints, to include VA treatment records in 2002 that indicated that except for right shoulder complaints and hypertension isolated reading, there were no prior medical problems known, and the reviewing provider noted the Veteran exercised 15 minutes daily without any problems. See November 2019 CAPRI. The earliest post-service medical evidence on file showing complaints related to these issues is over two decades after separation from active service in 2016. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed Cir. 2000) (the passage of many years between discharge from active service and medical documentation of a claimed disability is a factor that may weigh against a claim for service connection). Moreover, there is no competent, adequate probative medical opinion of record in support of the claims. The Veteran has offered his own opinion on etiology, stating that he currently has low back disability and sciatic nerve disability that are causally related to his active service. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno, 6 Vet. App. 465. However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran’s treating physicians signed off on the Veteran’s statement that his sciatic nerve disability was due to military service, the Board notes that this conclusory opinion was inadequate as it did not include an examination and formal diagnosis of the condition and lacked any rationale. See January 2012 Correspondence. Thus, the private opinion cannot be used as a basis for a grant of service connection for the claimed sciatic nerve disability. There was no adequate opinion submitted in support of the low back disability claim. Here, the probative evidence of record indicates that there is no current diagnosis of the claimed sciatic nerve disability. Nevertheless, even if the Veteran had such a diagnosis, the Board notes the Veteran’s contradicting statements regarding the onset of his claimed sciatic nerve disorder. In his February 2010 claim, he indicated that his claimed sciatic disorder began in 1982. See February 2010 VA 21-526 Veterans Application for Compensation or Pension. In the January 2012 correspondence that was signed by his treating physicians, the Veteran had written that his claimed sciatic nerve disability began while on active duty. See January 2012 Correspondence. However, in a November 2018 VA treatment record, the Veteran reported that his symptoms started around 2005, almost a decade after separation from active service. See November 2019 CAPRI. Statements made while seeking medical treatment are significant and given weight and credibility because they were made at a time when there was no incentive, financial or otherwise, to fabricate information for personal gain. Struck v. Brown, 9 Vet. App. 145 (1996); Rucker v. Brown, 10 Vet. App. 67 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth to receive proper care). The aforementioned treatment record notations regarding the Veteran’s post-service reports of onset of his claimed sciatic nerve condition are inconsistent with the Veteran’s claim that he had sciatic nerve related complaints during service and as such, the Board affords the Veteran’s statements little probative value. In sum, the Board affords more probative weight to the December 2019 VA examiner’s opinion in conjunction with the VA treatment records than the Veteran and his private physicians’ contentions regarding his low back disability and claimed sciatic nerve disability. Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for low back disability and sciatic nerve disability is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection, to include on a secondary basis, for left knee disability, to include a total knee replacement is remanded. Entitlement to service connection, to include on a secondary basis, for right knee disability, to include a total knee replacement is remanded. In a July 2016 VA examination, the Veteran attributed his knee problems to his service-connected ankle conditions. See July 2016 C&P Exam. In a November 2020 appellate brief, the Veteran’s representative vaguely referenced boilerplate language regarding secondary service connection without specificity as to what conditions. See November 2020 Appellate Brief. In fact, the entire brief is boilerplate without specific argument to the claims on appeal. Nevertheless, considering the Veteran’s specific reports that his knee problems are related to his service-connected ankle conditions, and a VA opinion has not been obtained as to whether his right and left knee disabilities are secondary to the right and left ankle disabilities, a remand is warranted to obtain such opinions. The matters are REMANDED for the following action: Obtain an addendum to the December 2019 VA examination with an appropriate examiner to determine the nature and etiology of his right and left knee disabilities on a secondary basis. The Veteran should be scheduled for a physical examination if deemed necessary. The examiner should provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right and left knee disabilities are proximately due to or caused by a service-connected disability, to include right and left ankle disabilities. (Continued on the next page)   (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right and left knee disabilities are aggravated by a service-connected disability, to include right and left ankle disabilities. Explain why or why not. A complete rationale is required for each opinion. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.