Citation Nr: 21001328 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-30 952 DATE: January 7, 2021 ORDER Service connection for a lumbar spine disability, to include as secondary to service-connected right knee degenerative joint disease (DJD), is denied. REMANDED Service connection for gastroesophageal reflux disease (GERD) is remanded. Service connection for obstructive sleep apnea is remanded. FINDING OF FACT The Veteran’s current lumbar spine degenerative arthritis did not manifest during his first post-service year, is not related to his service, and was neither caused nor has been aggravated by his service-connected right knee DJD. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to July 1968 and from September 1968 to June 1990. This matter is on appeal from a March 2014 rating decision. In November 2018, the Board of Veterans’ Appeals (Board) remanded it for additional development. Service Connection Direct service connection is established when there is a nexus between a current disability and an injury or disease incurred or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For veterans with qualifying service, service connection also is presumed under certain circumstances when the current disability is a chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Secondary service connection is established when a current disability is caused or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a, b). The claimant is afforded the benefit of the doubt when there is an approximate balance of evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The applicable standard thus is at least as likely as not. Only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Lumbar Spine Disability The Veteran contends he has a lumbar spine disability as secondary to his service-connected right knee DJD. Specifically, he states that the surgery he underwent for this knee disability during service resulted in his right leg being shorter than his left leg. This altered his gait, which he further states led to his low back pain. To be current, a disability must be present near or at the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). It is undisputed that the Veteran has a current disability. His claim was filed in September 2013. VA medical examinations dated in September 2019 and October 2020 both reflect diagnoses of degenerative arthritis of the spine with associated bilateral lower extremity radiculopathy. These examinations clarify, in alignment with diagnostic testing results reported in VA treatment records, that the degenerative arthritis is in the Veteran’s lumbar spine. Regardless of type, arthritis is a chronic disease. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). To qualify a veteran for presumptive service connection for such a disease, service of 90 days or more during a period of war or after December 31, 1946, is needed. 38 U.S.C. § 1112(a); 38 C.F.R. § 3.307(a)(1). Here, the Veteran served for decades entirely after this date. Several of these years also were during the period of war referred to for VA purposes as the Vietnam Era. 38 U.S.C. § 101(29)(B); 38 C.F.R. § 3.2(f). Arthritis must have become manifest to a degree of 10 percent or more within one year from the date of separation from service to establish service connection presumptively. 38 U.S.C. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). However, there is no indication that the Veteran manifested lumbar spine arthritis between June 1990 when he last separated from service and June 1991. The only medical evidence dated during that timeframe is a January 1991 VA medical examination, at which he did not complain of any low back problems. His low back consequently was not assessed directly. It also was not assessed indirectly via diagnostic testing. This is important, as arthritis typically must be confirmed on X-ray. 38 C.F.R. § 4.71A Diagnostic Codes 5003-5010. The Veteran’s recount of low back pain ever since undergoing right knee surgery during service, made in connection with his claim, is contradictory to his failure to mention it at the January 1991 examination. This failure back then is more probative than his recent recounts. Indeed, the examination addressed his current condition at the time whereas the recounts concern his condition over two decades earlier. Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Veteran further complained of many musculoskeletal problems, including pain, in his right knee, left knee, and right hip at the examination. As such, his failure to mention low back pain strongly suggests he was not experiencing it then. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Veteran, in sum, is competent to now recount low back pain during his first post-service year. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Yet he is not credible in recounting it. Even if he was credible, he is not competent to determine that his low back pain was attributable to arthritis. Such a determination is medically complex, and there is no indication that he has any sort of medical background. As noted above, diagnosing arthritis indeed typically requires the ability to interpret X-rays or other diagnostic testing. Knowledge of the musculoskeletal system in general and various diagnoses like arthritis or similar in specific also may’ be required. Jandreau v. Nicholson, 492 F.3d 1372, n.4 (Fed. Cir. 2007). The Veteran lacks this ability and knowledge. He, in sum, was not diagnosed with lumbar spine arthritis during his first post-service year. There further is no basis to conclude that he manifested lumbar spine arthritis during that year even though it was not diagnosed. Presumptive service connection accordingly is not warranted. Turning to direct service connection, the Veteran’s service treatment records are silent for any relevant injury or disease. Indeed, they do not show that he ever complained of or received treatment for his low back. His spine was found to be normal upon assessment at several examinations, to include his May 1990 separation examination. He denied having ever had or then having recurrent back pain at this examination. This denial then, like above, is more probative than his recent contrary recount of low back pain ever since in-service right knee surgery. That the Veteran’s recount of low back pain during his first post-service year is competent but not credible is reiterated. His recount of low back pain thereafter likewise is competent but not credible. He would have personally experienced any such pain. Layno, 6 Vet. App. at 469-470. However, he once again failed to mention it at a December 1994 VA medical examination. Yet he mentioned pain in other joints, to include not only in his right knee but also in his right ankle and right hip that had developed that year. This strongly suggests he was not experiencing low back pain then. Buczynski, 24 Vet. App. at 224. The examination also addressed his current condition whereas the recounts concern his condition almost two decades earlier. Curry, 7 Vet. App. at 68. In addition to the Veteran’s recounts of continuous low back pain lacking credibility, March 1999 VA X-rays taken after his complaint of low back pain constitute the earliest evidence of lumbar spine degenerative arthritis. This is almost 9 years after the Veteran’s last separation from service, a lengthy gap. A negative inference may be drawn from the absence of relevant complaints for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). However, there must be a proper foundation to demonstrate that such absence “has a tendency to prove or disprove a relevant fact.” Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). The Veteran had two VA medical examinations concerning his joints during the aforementioned 9 year lengthy gap. He did not complain about his low back at either. The gap thus weighs against service connection. In a June 2017 statement, the Veteran related that recent X-rays were reviewed by a VA orthopedic surgeon and physician’s assistant at his last appointment. He then related that these medical professionals related to him that service related damage to his low back was evident. He is competent to do so. Layno, 6 Vet. App. at 469-470. Even assuming he also is credible, he did not relate that the medical professionals supplied any explanation in support of their favorable opinion. It therefore is not probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, the only other medical opinion to address direct service connection is against service connection. This opinion, rendered by VA in September 2019 following review of the claims file and examination of the Veteran, specifically concluded that his current lumbar spine degenerative arthritis is less likely than not related to his service. The supporting explanation accurately noted that there was no evidence of a lumbar condition during his service or his first post-service year, that his separation examination was negative in this regard, and that the first evidence of a lumbar condition was the March 1999 X-rays. While the explanation did not address the Veteran’s recount of low back pain ever since in-service right knee surgery, not doing so is not problematic given the Board’s determination that this recount is not credible. The September 2019 VA medical opinion, in sum, is based on accurate facts and consists of a clear conclusion explained with supporting data. It accordingly carries substantial probative value. Nieves-Rodriguez, 22 Vet. App. at 304. As the preponderance of the evidence is against direct service connection, it is not warranted. That leaves secondary service connection. Although the Veteran believes that his current lumbar spine degenerative arthritis is secondary to his service-connected right knee DJD, he is not competent to render an opinion in this regard. Doing so indeed is medically complex, requiring knowledge of the musculoskeletal system as well as how it is impacted by various factors. The Veteran lacks this knowledge since he has no medical background. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). An October 2020 VA medical opinion, rendered following review of the claims file and examination of the Veteran, is the only other evidence on point. It concluded that his current lumbar spine degenerative arthritis is less likely than not due to/the result of as well as aggravated beyond natural progression by his service-connected right knee DJD. The supporting explanation acknowledged that it is not unusual for two joints to share properties in the same person and that DJD most commonly affects the knees and lower back. However, it then conveyed that there is no clear evidence that DJD in one joint spreads or affects/causes damage to another joint unless there is major muscle or nerve damage causing paralysis. Although not stated in the opinion, it is undisputed that the Veteran’s right knee injury did not result in major muscle or nerve damage causing paralysis. His right knee DJD could not have spread to his lumbar spine (caused his lumbar spine degenerative arthritis) or even affected his lumbar spine (aggravated his lumbar spine degenerative arthritis beyond natural progression), in other words. Two orthopedic textbooks were cited in discussing the aforementioned. Finally, another cause of the Veteran’s current lumbar spine degenerative arthritis was provided. It “most likely indicates a natural aging process.” The October 2020 VA medical opinion, in sum, is based on accurate facts and consists of a clear conclusion explained with supporting data. It accordingly carries substantial probative value. Nieves-Rodriguez, 22 Vet. App. at 304. Since the preponderance of the evidence is against secondary service connection, it is not warranted. The Veteran’s claim must be denied because neither service connection cannot be established presumptively, directly, or secondarily. REASONS FOR REMAND Unfortunately, adjudication of service connection for GERD and for obstructive sleep apnea cannot occur without additional development. The Veteran underwent VA medical examinations, pursuant to the Board’s prior remand, in September 2019. He underwent another round of VA medical examinations in October 2020. They are adequate, but the opinions accompanying them are not adequate. GERD Both the September 2019 and October 2020 opinions concerning the Veteran’s GERD were against service connection. The explanation for each included, among other things, reference to the lengthy gap between his service and the first post-service documentation of GERD in 2011 or 2012. However, VA treatment records reflect a prescription for omeprazole/Prilosec dated years earlier in July 2000. This medication, or another proton pump inhibitor, often is used to treat GERD. Merck Manual Professional Version online, Gastrointestinal Disorders, Esophageal and Swallowing Disorders, Gastroesophageal Reflux Disease (GERD) (last visited Jan. 3, 2021). The Veteran indeed has reported taking it daily to control his GERD symptoms in the past. In sum, the opinions are based partially on an inaccurate factual premise. This means that they lack probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A new opinion accordingly is warranted, after attempts are made to obtain all outstanding VA and relevant private treatment records that may inform it. Obstructive Sleep Apnea Like with GERD, the September 2019 and October 2020 opinions concerning the Veteran’s obstructive sleep apnea were against service connection. The September 2019 opinion is inadequate because the explanation did not address his reports of snoring during service, as required by the Board. While the explanation for the October 2020 opinion acknowledged these reports, there was no real discussion of them. The explanation further appears contradictory in noting both that there is no objective evidence of obstructive sleep apnea during the Veteran’s service and that his obstructive sleep apnea then was acute only. The lengthy gap between his service and the first post-service documentation of obstructive sleep apnea in January 1998 finally was mentioned, but there was no discussion of his reports that his snoring continued throughout it. Such a discussion is now required. Miller v Wilkie, 32 Vet. App. 249, 257-260 (2020). In sum, the October 2020 opinion is inadequate for several reasons. A new opinion accordingly is warranted, after attempts are made to obtain all outstanding VA and relevant private treatment records that may inform it. The aforementioned issues are REMANDED for the following action: 1. Follow established procedure for obtaining the Veteran’s updated VA treatment records and any outstanding private treatment records identified as relevant to his GERD or obstructive sleep apnea. 2. After completing paragraph 1, arrange for a qualified VA clinician to review the claims file and opine as to whether the Veteran’s GERD is at least as likely as not (a 50 percent or greater probability) related to his service. A detailed explanation is required to support this opinion. This means that relevant medical principles and/or literature should be discussed as it relates specifically to the Veteran, as shown by his medical and lay (non-medical) evidence. In this regard, comment must be made on his reports of periodic heartburn which began during service and went on for years as well as of a nose and throat scope revealing chronic acid reflux disease, along with a deviated septum, around 1998. Comment also must be made on his July 2000 prescription for omeprazole/Prilosec. 3. Also after completing paragraph 1, arrange for a qualified VA clinician to review the claims file and opine as to whether the Veteran’s obstructive sleep apnea is at least as likely as not (a 50 percent or greater probability) related to his service. A detailed explanation is required to support this opinion. This means that relevant medical principles and/or literature should be discussed as it relates specifically to the Veteran, as shown by his medical and lay (non-medical) evidence. In this regard, comment must be made on his reports of loud snoring and waking up at night choking/gasping for air which began during service and continued thereafter. 4. Then readjudicate service connection for GERD and for obstructive sleep apnea. Follow established procedure for returning any issue that remains denied to the Board. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becker 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.