Citation Nr: 21002319 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-57 625 DATE: January 13, 2021 ORDER Service connection for degenerative disc disease (DDD) of the lumbar spine, intervertebral disc syndrome (IVDS), residual scar (hereinafter “back disability”) is denied. Service connection for left leg sciatica is denied. FINDINGS OF FACT 1. The Veteran’s current back disability did not have its onset in service, arthritis was not manifested to a compensable degree within one year of discharge, and the back disability is not otherwise causally related to service. 2. The preponderance of the evidence supports a finding that the Veteran’s left leg sciatica is related to his back disability, for which service connection has been denied. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.  2. The criteria for service connection for left leg sciatica have not been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1969 to July 1973. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from aa September 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision denied service connection for DDD of the lumbar spine, IVDS with residual scar and service connection for left leg sciatica, claimed as nerve damage. The Veteran’s Notice of Disagreement (NOD) was received in April 2015. The Statement of the Case was issued in October 2016 and the Veteran’s VA Form 9, substantive appeal to the Board was received in November 2016. In April 2019, the Veteran and his representative appeared before the undersigned Veterans Law Judge (VLJ) at a Board hearing. The transcript is of record. In September 2019, the Board remanded the claims for further development and adjudication. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease was manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or, if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Then, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. 1. Entitlement to service connection for DDD of the lumbar spine, IVDS with residual scar. The Veteran seeks service connection for a back disability. At the April 2019 hearing, the Veteran testified that he experienced back pain prior to entering service but it resolved before service. The Veteran also testified that while in service, he worked on the deck of an aircraft carrier and helped launch fighter planes. His job included rolling underneath each plane before takeoff and hook ropes, bridals, and tension rods to the bottom of the plane on its way to catapult. The Veteran testified that the equipment he had to attach to each plane weighed approximately 75 to 100 lbs. and he would continuously roll under each plane (when they were as low as eighteen inches off the ground) as they took off, sometimes taking as little as 30 seconds to attach the equipment. His shifts lasted approximately 12 hours. The Veteran testified that he first hurt his back in 1972 when he was hit in the head and knocked down with a part of an F-4 fighter. The Veteran indicated that he received stitches and began experiencing back pain and leg pain following this injury which got worse later in life. He also indicated that he was seen by the VA for back and leg pain after discharge. The Veteran also seeks service connection for left leg sciatica. Because this disability was diagnosed and treated along with his back disability, the record with respect to the disabilities will be discussed together. The Veteran’s service treatment records (STRs) contain an August 1969 entrance physical. Under history, the examination report indicates that the Veteran had low back trouble. The examiner noted that the Veteran’s low back “should be ok now.” The Veteran qualified for enlistment. No problems associated with the Veteran’s left leg were noted. A December 1969 STR indicates that he was examined and found physically qualified for a transfer. A March 1971 STR indicates that he had sutures removed. An April 1971 STR indicates that he complained of bilateral lower leg pain upon prolonged standing with relief upon elevation of the legs. He was recommended to treat his legs in the whirlpool. A May 1971 STR indicates that he was seen for cough, congestion, body ache, sore throat, and headaches. It was noted that his back had full motion and his joints were ok. A January 1973 STR indicates that he complained of right lower leg pain for two days which was treated with analgesic balm, wrap and heat. A July 1973 report of medical examination at discharge indicates that the Veteran’s spine, other musculoskeletal, and lower extremities were all normal. A September 1974 rating decision indicates that the Veteran was denied service connection for undiagnosed symptoms of the left knee and a right knee disability. A January 2011 private treatment note from Dr. M.F. indicates that the Veteran reported occasional left lateral lower back discomfort that can radiate to left lower extremity. The note also indicates that the Veteran has been able to complete his daily activities, tries to exercise on a regular basis, and takes Ibuprofen which is helpful. The Veteran reported no limb pain, no joint pain, and no joint swelling. He reported episodic lower back pain. X-rays were completed and the findings demonstrate multilevel lumbar spondylosis with osteophyte formation seen at all levels. Intervertebral disc space narrowing and facet arthropathy were seen at all levels. The Veteran was diagnosed with degenerative joint disease (DJD) of the lumbar spine with history of back pain with occasional radicular pain to the lower left leg. He was noted to be clinically stable and recommended to continue use of Ibuprofen. It was also recommended that the Veteran return for follow up if his symptoms worsen. An October 2011 private treatment note from Dr. A.G. indicates that the Veteran was evaluated for low back pain. Onset of low back pain was noted to be January 2011. The Veteran reported no specific injury and indicated that he usually runs. The Veteran described the pain as burning, with numbness and tingling to his left toes. The Veteran also reported that his pain is not constant, but is worse with lifting, walking, and standing. An EMG was completed, and the findings indicate that there is probable chronic mixed left L5 greater than S1 radiculopathy. The findings also indicate that this can be seen in spinal stenosis and that there are no acute radicular features. The findings did not suggest peripheral polyneuropathy, and there was no focal entrapment of the peroneal nerve or tarsal tunnel posterior tibial nerve. A March 2011 MRI was reviewed, showing decreased height and signal of the lumbar discs. The Veteran was diagnosed with sciatica, lumbar stenosis, lumbar radiculopathy, lumbar disc herniation, osteoarthritis/DJD/spondylosis/facet arthritis of the lumbar spine, lumbar muscle strain, and lumbar spine DDD. A January 2012 private operative report from Dr. A.G. indicates that the Veteran underwent left sided L4-5 and L5-S1 microdiscectomies. There were no complications. A September 2013 private treatment note from Dr. G.R. indicates that the Veteran was seen for a physical. He reported his back pain to be worsening, and described it as shooting, sharp, and worse with leaning back and in the bottom left foot. A March 2014 private treatment note from Dr. A.G. indicates that the Veteran is status post left sided L4-5, L5-S1 microdiscectomy, which was completed in January 2012. The Veteran’s lumbar disabilities were noted to be improved. It was noted the Veteran was doing very well with his home exercise program and that he has an increased lumbar range of motion with very little intermittent left leg sciatica. The Veteran denied lower back pain while standing and reported intermittent sciatica while walking, which is relieved by walking. In May 2014, the Veteran underwent a VA examination for his claim. He was diagnosed with DDD of the lumbar spine with left leg sciatica. The VA examiner concluded that the Veteran’s disability was at least as likely as not incurred in or caused by service and for rationale indicated that the Veteran was not diagnosed with his back disability until 2011. In September 2014, the VA produced an addendum medical opinion indicating that it is at least as likely as not that the Veteran’s pre-existing lumbar strain was permanently aggravated beyond its natural progression by active service. The Veteran’s November 2014 VA Form 9 indicates that he was seen at the VA for leg pain and that they called it knee pain. As noted in the September 2019 Board decision, the May 2014 VA medical opinion and September 2014 VA addendum opinion are not afforded probative value as they are internally inconsistent and rely on records that do not appear to be in the Veteran’s file. A January 2016 private lumbar MRI report indicates that the Veteran had severe central canal stenosis at L3-4 and moderate narrowing of the left exit foramine with a very small disc fragment at the L4-5. There was no change in the degree of stenosis. A February 2016 private treatment note from Dr. A.G. indicates that the Veteran underwent epidural steroid injections for his back disability. In October 2020, the Veteran underwent a VA examination for his claim. The Veteran reported sudden onset of low back pain secondary to pulling injury on the flight deck which left him with chronic low back pain. The Veteran also reported going to the VA in 1973 shortly after retirement with no imaging being done at that time. The VA examiner thoroughly summarized the Veteran’s records, including his STRs and entrance and discharge examination, his private treatment records and imaging reports, and private operative reports. The Veteran was diagnosed with IVDS and spinal stenosis with left lower extremity radiculopathy, degenerative arthritis of the lumbosacral spine, lumbosacral DDD, and levoscoliosis. The VA examiner concluded that it is less likely than not that the Veteran’s back disability was incurred in service or is related to the Veteran’s service, to include his claimed injury and the strenuous physical requirements of service. The VA examiner indicated that the Veteran’s STRs are silent for any lumbar spine problems during service and that there is no evidence of chronicity or continuity of care. The VA examiner also indicated that the first time the Veteran was treated for back problems was in 2011, which is 38 years after discharge. With respect to the Veteran’s left leg sciatica, the VA examiner concluded that it is at least as likely as not the result of the Veteran’s lumbar spine DDD and IVDS. The VA examiner also indicated that the Veteran’s superficial scar does not affect his lumbosacral spine or sciatic nerve. Based on a review of the entire record, the preponderance of the evidence supports the finding that the Veteran’s current back disability did not have its onset in service, and it is not otherwise causally related to service, to include the in-service flight deck injury and strenuous demands of service. Likewise, arthritis was not manifested to a compensable degree within the first post-service year. As such, service connection is not warranted. At the outset, the Veteran’s back disability did not clearly and unmistakably pre-exist service. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was clearly and unmistakably not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In this case, the Veteran’s August 1969 entrance examination report indicates that the Veteran had previous back problems. However, the report also indicates that the Veteran’s back problems resolved and should be ok. Subsequently, the Veteran was cleared for service. The October 2020 VA examination report addressed the August 1969 entrance examination and indicated that the Veteran’s back was negative for any back problems with the exception of this notation. The October 2020 VA examiner concluded that the Veteran’s current back disability did not have its onset in service and instead had its onset in 2011. The October 2020 VA examination report contains a thorough summary of the Veteran’s records and complete rationale for all conclusions reached. Moreover, the October 2020 VA examination report is corroborated by the Veteran’s private treatment records. As such, it is afforded probative value. Based on the Veteran’s August 1969 examination report and the October 2020 VA examination report, the Veteran’s back disability did not clearly and unmistakably pre-exist service, and as such he is presumed sound at entry. Next, the Veteran’s back disability did not have its onset in service and did not manifest as arthritis within one year of discharge. The Veteran’s STRs, private treatment records, and the October 2020 VA examination report indicate that the Veteran’s current back disability did not have its onset until 2011. Specifically, January 2011 private treatment records from Dr. M.F. contain a diagnosis of lumbar DJD with left leg radicular pain. It was noted that the Veteran had prior occasional low back discomfort, but the onset of constant pain was January 2011. While the Veteran contends that he experienced back pain in service which worsened after discharge, the medical records in this case do not support this contention. There is a notation that the Veteran had sutures removed in service, but he was not treated for a back injury and did report back pain. Moreover, there are no records of treatment or complaints for back pain until January 2011. The Veteran also contends that he was seen by the VA in 1973 for back pain. However, there are no records of this encounter. As such, the preponderance of the evidence supports a finding that the Veteran’s current back disability did not have its onset in service and did not manifest to a compensable degree within one year of discharge. With respect to nexus, the October 2020 VA medical opinion indicates that the Veteran’s current back disability is less likely than not related to service, to include the claimed in-service deck injury and the strenuous demands of his service. The Veteran’s records corroborate this finding. With respect to the Veteran’s sincere belief that his current back disability relates to his service, the Veteran is not competent to provide a medical nexus opinion as to a relationship between his disability and service; or, any other disease or injury in service. This requires medical expertise and falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In this regard, any actual diagnosis of a back disability, and causation between service and disability, requires objective testing and medical expertise to diagnose. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran believes that his current back disability was caused by service and his in-service injury requiring suture removal and the general strenuous demands of his service, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran is not deemed competent to know the cause of his back pain, as this is an internal physiological process that requires medical expertise. Even considering the Veteran’s credible reports of back pain since service, the preponderance of the most probative and competent evidence of record is against finding that the back pain associated with the current back disability is the same cause of the back pain that the Veteran experienced more contemporaneous in time to service. Accordingly, the Veteran’s opinion as to the nexus in this case is not competent evidence. Id. In sum, the preponderance of the evidence is against a finding that the Veteran’s back disability had its onset in service, or is otherwise causally related to service; and, arthritis is not shown to have manifested to a compensable degree within one year of discharge. Accordingly, the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application, and service connection is not warranted. 2. Entitlement to service connection for left leg sciatica. The Veteran seeks service connection for left leg sciatica and alleges that he began experiencing pain in service after performing the above-mentioned duties rolling under and attaching equipment to fighter planes as they took off. The record with respect to this disability was discussed along with the Veteran’s back disability. Based on a review of the entire record, the preponderance of the evidence supports a finding that the Veteran’s current left leg sciatica did not have its onset in service, did not manifest to a compensable degree within one year of discharge, and is not otherwise causally related to service, to include the claimed in-service injury and strenuous demands of service. Essentially, the evidence in this case indicates that the Veteran’s left leg sciatica is related to the Veteran’s back disability, for which service connection has been denied. As such, service connection is not warranted. The Veteran’s left leg sciatica did not have its onset in service or for many years thereafter. The Veteran’s private treatment records indicate that left leg sciatica did not have its onset until 2011, when he reported pain, numbness, and tingling to his left toes. An October 2011 private EMG report indicated probable radiculopathy. While the Veteran contends that his left leg pain began in service and manifested into his current left leg sciatica, the probative medical evidence in this case contradicts those contentions. The Veteran’s STRs contain a singular instance of bilateral leg pain in service, which was treated in the whirlpool. The Veteran indicated that he was seen for leg pain by the VA shortly after discharge. The September 1974 rating decision indicates that the Veteran was denied service connection for bilateral knee disabilities. A singular instance of bilateral leg pain noted in the Veteran’s STRs does not establish onset of chronic left leg sciatica, particularly given that there was no follow up treatment and the Veteran’s discharge examination did not contain any left leg problems. While it is true that the Veteran was seen by the VA for knee pain after discharge, the September 1974 rating decision confirms that no disability was diagnosed as a result. There are no other documents containing complaints or treatments for left leg pain until 2011. Thus, the probative medical evidence of record indicates that the Veteran’s left leg sciatica did not have its onset in service and did not manifest to a compensable degree within one year of discharge. With respect to nexus, the probative medical evidence of record, including the Veteran’s private treatment records and the October 2020 VA examination report indicate that his left leg sciatica is attributable to his back disability. The October 2011 private EMG report notes probable radiculopathy related to the back disability. The March 2014 private treatment note from Dr. A.G. indicates that the Veteran’s left leg pain improved after his back surgery. The October 2020 VA examination report indicates that the Veteran’s left lower extremity radiculopathy is related to his back disability. These records were compiled by medical providers during diagnosis and treatment, and further outweigh the Veteran’s assertions. In sum, the preponderance of the medical evidence is against a finding that the Veteran’s left leg sciatica had its onset in service, manifested to a compensable degree within one year of discharge, or was otherwise causally related to service. Moreover, the Veteran’s left leg sciatica has been attributed to his back disability, for which service connection has been denied. Accordingly, the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application, and service connection is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.