Citation Nr: 21000707 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-46 537 DATE: January 6, 2021 ORDER Service connection for a back disability is denied. REMANDED Service connection for bladder cancer is remanded. Service connection for prostate cancer is remanded. FINDING OF FACT A back disability did not originate in service or for years thereafter, and the preponderance of the evidence is against a finding that a back disability is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1951 to January 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from two rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). A September 2015 rating decision denied the Veteran’s claim for a back disability, and a December 2016 rating decision denied the Veteran’s claims for service connection for bladder cancer and prostate cancer. This matter was most recently before the Board in December 2018, at which time it remanded the claim for service connection for a back disability in order to attempt to obtain additional private treatment records and to afford the Veteran with a new examination. Such records were obtained, and the Veteran received an additional examination. The Board finds that there has been substantial compliance with the terms of its December 2018 remand, and it will proceed to a decision with respect to the Veteran’s claim for service connection for a back disability. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). The Veteran testified at a July 2018 hearing before a Veterans Law Judge (VLJ) who no longer serves as a VLJ at the Board, and a transcript of this hearing has been associated with the record. In October 2020, the Board informed the Veteran of his right to request an additional hearing before a different VLJ, and that if the Board did not receive the Veteran’s reply within 30 days, it would assume that the Veteran did not wish to participate in another hearing. To date, the Veteran has not responded to this letter, and the Board assumes that the Veteran does not wish to participate in an additional hearing. Service Connection The Veteran argues that he has a back disability as the result of two in-service falls, including a 1951 fall down a flight of stairs and a March 1952 fall from a 30-foot pole. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 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 for certain chronic diseases may be established based on a continuity of symptoms since discharge.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  Arthritis is a chronic disease for which service connection may be established based on a continuity of symptoms or presumption.  Turning to the facts in this case, the Veteran’s service treatment records show that he fell down a flight of stairs in August 1951 and was treated for a right ankle sprain. In the Veteran’s January 1953 self-reported medical history, the Veteran denied ever having experienced symptoms such as arthritis, rheumatism, deformities, or neuritis. Consistent with the self-reported symptoms, the January 1953 separation examination indicated that the Veteran’s spine was normal. The examiner noted that the Veteran had experienced no serious injuries, operations, or diseases, and the Veteran had no medical complaints at the time of his examination.   Following the Veteran’s separation from service, in May 2012, a private chiropractor indicated that the Veteran had returned for treatment of “very bad burning low back pain” after last having been seen 12 years earlier. In October 2013, the Veteran stated than he had experienced symptoms of low back pain for several years, with a 1-2 year exacerbation of chronic low back pain. In a separate record from October 2013, the Veteran reported that he had experienced symptoms of back pain for several years, with the pain worsening over the past 2 years. In October 2014, Dr. Sterling, a private physician, opined that the Veteran’s back disability was more likely than not related to “incidents that occurred in 1951-1952”. Dr. Sterling did not, however, offer a rationale explaining this opinion. The Veteran underwent a VA examination in September 2015, at which time the examiner opined that it was less likely than not that the Veteran’s back disability related to his active duty service, and that such disability was more likely related to the Veteran’s advanced age. In a July 2017 addendum opinion, the examiner again opined that it was less likely than not that the Veteran’s back disability related to his active duty service. As a rationale for this opinion, the examiner noted that the Veteran’s separation examination was normal, and the Veteran did not seek medical attention for this issue for over 50 years following his separation from service. During his July 2018 hearing before the Board, the Veteran described both the in-service injuries that he believed led to his back disability and the nature and duration of the back pain that he experienced. In July 2018, Dr. Sterling, in an opinion largely addressing the Veteran’s neck symptoms, rather than back symptoms, opined that the “chronicity of the [Veteran’s] symptoms and his MRI findings are consistent with his prior injuries sustained while on active duty”. In its December 2018 remand, the Board found the September 2015 examination report and July 2017 addendum to be inadequate. The examiner was noted to have failed to discuss the Veteran’s statements and relied on the absence of active duty evidence of a back injury. The Board found that an additional examination was required in order to assess the likely etiology of the Veteran’s back disability.   The Veteran underwent an additional VA examination in December 2019, at which time the examiner opined that it was less likely than not that the Veteran’s back disability related to his active duty service. As a rationale for this opinion, the examiner considered the Veteran’s reports of experiencing multiple falls during service, with his first fall resulting in him wearing a cast on his right leg for 6-8 weeks. The Veteran stated that the pain in his back and associated mobility problems had worsened since his in-service falls. With that said, the examiner observed that the Veteran’s separation examination showed normal clinical evaluations of both the spine and lower extremities, except a history of pulled ligaments in the right ankle. The examiner additionally observed that the Veteran did not seek medical attention for a back disability until approximately the year 2000, which was 50 years following the Veteran’s separation from service. Upon consideration of these factors, the examiner concluded that the Veteran’s back disability was more likely related to aging than to service. Turning to an analysis of these facts, the evidence supports findings that the Veteran indeed fell down a flight of stairs during service, and the Veteran has a current back disability.  With that said, the Board must determine whether a nexus, or connection, exists between the Veteran’s active duty service and his current disability. The Board finds that the weight of the evidence is against a finding that the Veteran experienced a chronic back disability as a result of his active duty service.  In making this determination, the Board places great probative weight on the opinion of the December 2019 examiner that the Veteran’s back disability was not likely related to his service because such opinion was offered by a medical professional, and the opinion considered and discussed the pertinent evidence of record, to include the reported lay evidence, service treatment records, and post-service medical records. Full consideration has been given to the opinions of Dr. Sterling that the Veteran’s back disability is indeed related to his service. However, those opinion carry little probative weight. Dr. Sterling did not explain his conclusions, and he did not address pertinent evidence that was contrary to his opinion. For example, the record indicates that the Veteran, when seeking medical treatment for back pain in 2012 and 2013, endorsed a “several year” history of back pain, rather than a history of back pain extending almost 60 years since his separation from service. To the extent that the Veteran asserts that his back disability is related to his active service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Indeed, VA provided the Veteran with examinations based on the competency of those observations.  Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing readily observable symptoms such as pain.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The issue of causation of a back disability, however, is a medical determination outside the realm of common knowledge of a lay person.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran’s back disability is related to his service, the Board affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, because such evidence was provided by a medical professional and concerned the Veteran’s orthopedic system, the internal functioning of which is not readily perceivable by the use of a person’s senses.  The Board finds additionally that the weight of the evidence is against a finding of a continuity of symptomatology associated with the Veteran’s back disability. Following service, the medical evidence does not show evidence of a back disability for over 50 years following the Veteran’s separation from service.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Additionally, when seeking treatment for back pain in 2012 and 2013, the Veteran endorsed a “several year” history of back pain, rather than a 60 year history extending back to his separation from service. The Veteran’s back/spine was also found to be normal at the time of his separation from service, and the Veteran denied ever having experienced any symptoms affecting his spine at the time of his service separation. The Board thus finds that the weight of the evidence record does not support a finding that the Veteran experienced symptoms of a back disability continuously since service.  The medical nexus element thus cannot be met via a continuity of symptomatology. Presumptive service connection is similarly unwarranted because a back disability was not shown within one year following the Veteran’s separation from service.  Accordingly, the criteria for service connection for a back disability have not been met, and the Veteran’s claim is denied.  REASONS FOR REMAND While the Board regrets the additional delay, the Veteran’s claims for service connection for bladder cancer and prostate cancer must be remanded in order to ensure that the Veteran’s claims are decided upon a full and complete evidentiary record. The Veteran contends that his bladder and prostate cancer, which are both radiogenic diseases, relate to his alleged in-service exposure to radioactive and chemical hazards while serving at Eta Jima in 1952. The Board’s December 2018 remand instructed the Agency of Original Jurisdiction (AOJ) to conduct the additional evidentiary development, including the preparation of a radiation dose estimate, that is required in cases involving the development of radiogenic disease following an alleged in-service exposure. See 38 C.F.R. § 3.311. Following the Board’s remand, in July 2019, October 2019, December 2019, January 2020, and March 2020 (to two separate recipients), the AOJ requested a DD Form 1141, Record of Exposure to Ionizing Radiation, from the Army’s Dosimetry Center. These requests appear to have been returned to VA as undeliverable. The Board observes that at no time did the Army actually respond to VA’s request. In May 2020, the AOJ informed the Veteran of the efforts that it had taken to obtain these records and that any further attempts to obtain the records would be futile. The Board finds that the AOJ should indeed undertake additional efforts to develop the evidentiary record. The Army never, in fact, provided a negative response to the AOJ’s requests; indeed, it is unclear from the available record whether the appropriate repository actually received the AOJ’s requests for information. Accordingly, the Board must again remand the Veteran’s claims in order to undertake all appropriate efforts to develop the evidentiary record pursuant to the requirements of 38 C.F.R. § 3.311. The matters are REMANDED for the following actions: 1. Following the provisions of 38 C.F.R. § 3.311, request from the appropriate repository any available records concerning the Veteran’s alleged exposure to radiation, including the Veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if such records are maintained, and any other records that contain information pertaining to the Veteran’s in-service radiation dose. The AOJ should fully document its efforts to obtain this information, and its efforts should conclude only with a positive or negative response from the repository of this information. 2. Then, following the provisions of 38 C.F.R. § 3.311, forward the Veteran’s claims file to the VA Under Secretary for Health for preparation of a radiation dose estimate. The dose estimate must be based on all relevant evidence of record, including the Veteran’s contentions regarding his exposure to radiation while serving as an aircraft mechanic and all pertinent information in the Veteran’s service records. 3. Then, refer the Veteran’s case to the Under Secretary for Benefits consideration in accordance with 38 C.F.R. § 3.311(c). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.