Citation Nr: 21002312 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-14 355 DATE: January 13, 2021 ORDER Entitlement to service connection for a chronic disability manifested by dizziness and loss of balance is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for radiculopathy of the left lower extremity is denied. Entitlement to service connection for radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran was not diagnosed with a chronic disability manifested by dizziness and loss of balance at any time during the pendency of the appeal. 2. The preponderance of the evidence shows that a back as well as radiculopathy of the left and right lower extremities were not present during service or until many years thereafter and radiculopathy of the left and right lower extremities were not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a chronic disability manifested by dizziness and loss of balance, a back disability, and radiculopathy of the left and right lower extremities have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Army from August 1982 to August 1985. In July 2018 the Board of Veterans’ Appeal (Board), among other things, remanded for additional development the Veteran’s claims of service connection for a psychiatric disorder, a chronic disability manifested by dizziness and loss of balance, a back disability, and radiculopathy of the left and right lower extremities. As to the claim of service connection for a psychiatric disorder, the Board finds that this claim is no longer in appellate status because the regional office (RO) thereafter granted the claim in a November 2020 rating decision. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Next, the record shows that the Veteran filed a notice of disagreement as to the effective date and rating granted his newly serviceconnected headaches in the February 2019 rating decision. However, the Board finds that this issue is not before us and will not be discussed below because that appeal is governed by the laws and regulations found in the Appeals Modernization Act (AMA) review system (see 38 C.F.R. § 20.300 to 20.305) (the new system) and the current appeal is governed by those in the Legacy review system (the old appeals system). Lastly, the Board finds that the post-Remand development complied with the July 2018 Remand. The Board has reached this conclusion because the November 2020 VA examinations provided opinions based on the record and controlling scientific and medical evidence as to the diagnoses and etiology of the Veteran’s dizziness and loss of balance, back disability, and radiculopathy of the left and right lower extremities taking into account, among other things, his in-service and post-service records as well as his lay claims regarding observable symptomatology. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). Given the above the Board finds that it need not again remand the appeal because it would further delay the appeal and impose additional burdens on VA with no benefit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Service Connection Claims The Veteran asserts, in substance, that service connection is warranted for a chronic disability manifested by dizziness and loss of balance, a back disability, and radiculopathy of the left and right lower extremities because they are due to his military service and/or, as to the radiculopathies, they are due to his back disability. As to his back disability, he specifically reports that he injured his back when he was pushed up against a wall by a 5-ton trailer attachment. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). i. a chronic disability manifested by dizziness and loss of balance The Board notes that the post-service record document the Veteran’s complaints and/or treatment for dizziness and/or loss of balance. See, e.g., VA examination dated in November 1999 and December 2005; VA treatment records dated in February 2006, May 2007, December 2007, March 2009, September 2009, October 2009, July 2012, and August 2012. Additionally, some of the VA treatment records also show the Veteran being diagnosed with vertigo or his problem list including benign paroxysmal positional vertigo. See, e.g., VA treatment records dated in May 2007, July 2012, and October 2012. Furthermore, in a July 2015 examination from Dr. Homer Skaggs it was opined that the Veteran had vertigo and it was a common symptom of his service-connected tinnitus. However, the Board finds that the most probative evidence of record shows that the Veteran has not been diagnosed with a chronic disability manifested by dizziness and loss of balance, including vertigo, at any time during the appeal. See Owens, supra. The Board has reached this conclusion because service treatment records, including a June 1985 examination shortly before his separation from service, are negative for complaints, diagnoses, or treatment a chronic disability manifested by dizziness and loss of balance. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In fact, when seen in June 1985 the Veteran specifically denied having a history of dizziness or fainting spells and his examination was normal. Id. Moreover, the Board finds that the post-service treatment records do not provide a competent and credible diagnosis of a chronic disability manifested by dizziness and loss of balance, including vertigo, because they pre-date the current appeal (i.e., they are not during the pendency of the appeal) (see McClain, supra.) and/or because they are simply the Veteran’s claims regarding dizziness and/or loss of balance recorded in his medical records and not a diagnosis (see LeShore v. Brown, 8 Vet. App. 406 (1995); Godfrey v. Brown, 8 Vet. App. 113, 121 (1995)). Additionally, the Board does not find the VA treatment records diagnosis of vertigo competent or credible because they are not supported by clinical evidence. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence). Likewise, the Board does not find Dr. Skaggs’ diagnosis of vertigo competent or credible because it is not supported by clinical evidence but instead relies on a general reference to a medical text entitled Psychological and Audiological Correlates of Perceived Tinnitus Severity. See Black v. Brown, 5 Vet. App. 177, 180 (1995); Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Similarly, the Board does not find the article entitled Psychological and Audiological Correlates of Perceived Tinnitus Severity competent or credible to diagnosis this Veteran with a chronic disability manifested by dizziness and loss of balance, including vertigo, because such generic texts, which does not address the facts in this particular case with any degree of medical certainty, does not amount to competent medical evidence. See Mattern v. West, 12 Vet. App. 222, 228 (1999). The question is not whether tinnitus could caused a loss of balance, but whether it has done so (at least as likely as not) in the Veteran’s case. However, in light of this article, the Board has undergone development to address this issue. The VA has undergone extensive efforts to address this issue. The Board finds the May 2009 and November 2020 VA examinations and their opinions that the Veteran does not have a chronic disability manifested by dizziness and loss of balance both competent and credible as well as that the most probative evidence of record. The Board has reached this conclusion because the VA examinations were held for the express purpose of obtaining a diagnosis and their opinions were provided after a review of the record on appeal, an examination of the Veteran, supported by citation to evidence found in the record including the post-service treatment records in which the Veteran reported having a problem with dizziness/loss of balance diagnosed, on occasion as vertigo, and, as to the 2020 VA examiner, Dr. Skaggs’ July 2015 examination that diagnosed vertigo due to his tinnitus. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Further, while the Veteran is competent to report on the symptoms he observes, the Board finds that he is not competent to diagnose a chronic disability manifested by dizziness and loss of balance because diagnosing it requires special medical training that he does not have and therefore he cannot provide the missing diagnosis. See Davidson, supra. The Board also finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because the findings by the November 2020 VA examiner shows that the claimed disability does not result in functional impairment that affects earning capacity. See Owens, supra; also see Wait v. Wilkie, No. 18-4349 (August 26, 2020). Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have a diagnosis of a chronic disability manifested by dizziness and loss of balance at any time during the pendency of the appeal and this claim is denied. 38 U.S.C. §§ 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. ii. a back disability as well as radiculopathy of the left and right lower extremities As to current disabilities, the post-service record now shows the Veteran being diagnosed with a posterior herniation L4-L5 and posterior central herniation L5-S1 as well as a back strain and radiculopathy of the left and right lower extremities. See, e.g., Dr. Mitchell Steinway treatment records dated in August 1992; magnetic resonance imaging evaluation (MRI) dated in January 1995; Nerve Conduction Study dated in January 1995; Social Security Administration (SSA) Disability Examinations by Anthony DelPiano, M.D., dated in March 1995 and May 1995; Dr. Arthur E. Taubman examination dated in April 1996; VA examinations dated November 2020. Additionally, the service treatment show that the Veteran was seen in February 1984 and August 1984 with reports low back pain. In this regard, in February 1984 the Veteran reported that he had dropped some ammunition, bent over to pick it up, back pain occurred abruptly, and he know had back pain with pain and numbness in his legs diagnosed with a mild lumbosacral strain. The Board finds that the Veteran is competent to report on what he sees as well as the manifestations of his disabilities, such as pain, numbness, and tingling. See Davidson, supra. However, the post-August 1984 service treatment records, including the June 1985 examination held shortly before his separation from service, are otherwise negative for an injury, complaints, diagnoses, or treatment for a back injury and/or a back disability with radiculopathy symptoms in the lower extremities. Additionally, the Board finds it significant that when examined in June 1985 the Veteran denied having a history of back pain and the examiner opined that his lower extremities, spine, and neurological examinations was normal; these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board finds the contemporaneous post-August 1984 service treatment records, including the June 1985 examination, more probative than the post-service lay claims from the Veteran regarding having continued adverse symptomatology since service because medical professionals have greater medical training. See Owens, supra; Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The detailed records in service provide particularly negative evidence against the claims, clearly indicating treatment for problems other than the issues before the Board. The records are highly detailed. Therefore, while the service treatment records show that the Veteran had a mild lumbosacral strain with radiating leg pain in February 1984 and again had back pain in August 1984, nearly 40 years ago, the Board finds, as the June 1985 examiner must have found when he reported that the appellant’s lower extremities, spine, and neurological examinations were normal, that the most probative evidence of record shows that this back disability and radiculopathy symptoms resolved before he separated from military service despite the appellant’s claims to the contrary. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a); Colvin, supra; Hensley, supra. The record also does not show the Veteran being diagnosed with a back disability with radiculopathy in the first post-service year. Therefore, the Board finds that the regulations regarding presumptive service connection do not help the Veteran establish service connection for any of his claims. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Similarly, the record does not show that the Veteran had a continued problem with a back disability as well as radiculopathy of the left and right lower extremities in and since service. In fact, as reported above, when examined in June 1985 the Veteran denied having a history of back pain and the examiner opined that his lower extremities, spine, and neurological examinations was normal despite the 1984 complaints and treatment for back pain with radiating leg pain diagnosed as a strain. Likewise, and perhaps more importantly, while the Veteran told VA that his back disability as well as radiculopathy of the left and right lower extremities and/or the symptoms of these disorders had persisted since he separated from service in 1985, the post-service record does not document his continued complaints, diagnoses, or treatment for the back disability as well as radiculopathy of the left and right lower extremities since his 1985 separation from service because it does not show any treatment for these disorders until 1992, at the earliest, almost a decade after service. See, e.g., treatment records from Dr. Steinway dated in August 1992; Elhurst Hosp Center treatment records dated in April 1994; Nerve Conduction Study dated in January 1995; MRI dated in January 1995; SSA Disability Examinations Dr. DelPiano dated in March 1995 and May 1995; Dr. Taubman examination dated in April 1996. The Board also finds it significant that the first documented post-service treatment for the back disability in August 1992 includes the Veteran’s claims that his problems started in February 1992 and the post-1994 complaints and treatment for the back disability as well as radiculopathy of the left and right lower extremities arose in earnest following his being injured at work (post-service) in April 1994 (i.e., a 20 or 25 feet fall down an elevator shaft). Id. We cannot ignore such evidence. The post-service medical treatment records provide significant evidence against this claim. At this point, the service medical records and the post-service medical evidence each provide evidence against these claims of high probative value. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a back disability as well as radiculopathy of the left and right lower extremities in and since service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(b). Furthermore, the record is negative for a competent and credible opinion that shows that his current back disability as well as radiculopathy of the left and right lower extremities are due to the Veteran’s military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In fact, the November 2020 VA examiner opined that his back disability is not due to his military service, including the instances of low back pain reported at that time, and the Board finds this opinion is the most probative evidence of record because is was were provided after a review of the record on appeal, an examination of the Veteran, and supported by citation to evidence found in the record and at the examination. See Owens, supra. As to the claims of service connection for radiculopathy of the left and right lower extremity and whether they are directly due to military service, the Board notes that VA did not obtain an opinion. However, given the above record which is negative for the claimed disorders while on active duty and for almost a decade after service as well as the Veteran’s claim that these problems are due to his back disability and not his military service, the Board finds that VA had no obligation to obtain a medical opinion as to these claims. See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). It is important for the Veteran to understand that at this point both the factual evidence and the medical evidence (treatment records and the best medical opinions) provides highly probative evidence against the claims that the Board cannot ignore. In addition, the Board finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions (i.e., what caused his current back disability as well as radiculopathy of the left and right lower extremities). See Davidson, supra. In this regard, the Board finds that he simply does not have the medical qualifications to provide a nexus opinion given the negative service treatment records and the almost decade long gap between active duty that ended in 1985 and the first complaints, diagnoses, or treatment for any of these disorders post-service. Therefore, the Board finds that the most probative evidence of record also shows that the Veteran’s post-service back disability as well as radiculopathy of the left and right lower extremities are not due to his military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra. Similarly, as to the Veteran’s claim that his radiculopathy of the left and right lower extremities is secondary to his back disability, the Board notes that the appellant is not service-connected for a back disability. Therefore, the Board finds that the Veteran does not meet the criteria for secondary service connection for radiculopathy of the left and right lower extremities. See 38 U.S.C. § 1131; 38 C.F.R. § 3.310; also see Allen, supra; Wallin, supra; Ward, supra. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is also against the Veteran’s claims of service connection for a back disability as well as radiculopathy of the left and right lower extremities. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. In reaching the above conclusion, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.