Citation Nr: 21003823 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-01 889 DATE: January 22, 2021 ORDER Entitlement to service connection for degenerative disc and joint disease (claimed as back condition) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s degenerative disc and joint disease is to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative disc and joint disease are not met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1965 until October 1967. This matter comes before the Board of Veteran’s Appeals (Board) from a July 2014 rating decision by the Department of Veteran’s Affairs (VA), Chicago, Illinois regional office (RO). In September 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. This matter was previously before the Board in February 2020. In the February 2020 decision, the Board directed the RO to obtain missing VA and private treatment records as well as magnetic resonance imaging (MRI) records and treatment records relating to injections. The Board also directed that if MRI or records relating to injections were obtained, then RO shall schedule the Veteran for a VA examination and obtain an addendum opinion as to the nature and etiology of the Veteran’s degenerative disc and joint disease. In March 2020, the RO obtained VA treatment records and associated them with the claims file. In April 2020, the Veteran provided an unsigned release to obtain private treatment records. Subsequently in April 2020, the RO informed the Veteran that the private treatment records could not be obtained and that the entire form had to be completed. The Veteran did not provide a signed release to obtain private treatment records. The RO scheduled, and the Veteran underwent, a VA examination in August 2020. An addendum opinion was obtained. Accordingly, the RO substantially complied with the Board’s February 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Board decisions shall be based on the entire record and consideration of all evidence, lay and medical, that is material. 38 U.S.C. § 7104(a); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). While the Board must review the entire record, it does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. See Timberlake, supra. In evaluating the evidence in any given appeal, it is the responsibility of the Board to make appropriate determinations of (a) competence; (b) credibility; and (c) weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Medical opinions are deemed competent since they are from medical professionals. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As to the matters adjudicated below, neither the Veteran nor his representative has raised any issues with VA’s duty to notify or VA’s duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Service Connection Generally, to establish service connection on a direct basis, a Veteran must show: a current disability; an in-service incurrence of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred during service, the so-called “nexus” requirement. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied to achieve direct service connection. For chronic diseases defined under 38 C.F.R. § 3.309(a), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed than the above three-part test. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b). If the evidence is not sufficient to establish that the disease was chronic at the time of service, then a continuity of symptoms after service must be shown, which is a distinct and lesser evidentiary burden than the nexus element of the above three-part test. Id.; Walker at 1338. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” Id. at 1338-39. In addition, the law provides that, where a Veteran served ninety days or more of active service, and chronic diseases manifests to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Entitlement to service connection for degenerative disc and joint disease (DDD) (claimed as back condition) The Veteran contends that his back condition is attributable to military service. In April 2014, the Veteran was afforded a VA examination in which the examiner diagnosed the Veteran as having degenerative arthritis of the spine. Thus, the Veteran has a current disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s April 1966 service treatment records show that the Veteran reported back pain. No diagnosis was provided; however, the Veteran was advised to apply ice for the pain. There is no other evidence in the Veteran’s service treatment records related to any complaint or injuries to his back while in service. At the October 1967 separation examination, no back defects were noted and the Veteran self-reported no spine conditions. VA treatment records show the Veteran reported back pain in 2014, 2017 and 2019. The Veteran’s initial complaint of back pain post-service was in October 2014, which was 47 years after discharge. In the February 2017 VA treatment records, the Veteran reported that he had low back pain since service and it had worsened over the past couple of years. In the May 2019 VA treatment records, the Veteran reported he injured his back in 1968 and had back pain ever since. However, the Veteran’s service treatment records only show a single instance when the Veteran reported low back pain in April 1966. In April 2014, the Veteran underwent a VA examination. At the examination, the Veteran reported he injured his back while on active duty and the pain seemed to resolve and did not return until the 1970s. After discharge from the service, the Veteran worked for the U.S. Postal Service for 33 years. He spent 20 years as a letter carrier and the last 5 years as a supervisor. He reported intermittent back pain requiring 5-7 days of sick leave per year. The examiner reviewed the Veteran’s medical history including a 2014 x-ray of lumbar spine that showed “mild lumbar scoliosis.” The examiner concluded that the Veteran’s back condition was less likely than not incurred in or caused by military service. The examiner supported his conclusion by stating: The veteran had one documented episode of lower back pain in 1966 which resolved prior to discharge in 1967. He reports that he had low back pain in the 1970s; however, he was employed by the USPS and worked as a letter carrier for 28 years. It is more likely that the current degenerative disc and joint disease of the lumbar spine is related to his occupational activities as a letter carrier that [sic] the one incident of back pain that occurred 47 years prior. The examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In an August 2020 clarifying addendum opinion, the examiner found the nature and etiology of Veteran’s DDD was most likely the normal degenerative changes which occur with aging. Specifically, the examiner opined that it is less likely than not that it is the result of the single episode of low back pain treated with analgesic and ice in April 1966. The examiner supported his conclusion by stating: “Despite veteran’s current recollections, there is no evidence that the back pain at Ft. Leonard Wood was significant. There was no follow up to the incident, (the 1 Apr 66, 15 Jan 67, & 10 Mar 67 encounters and 26 Aug 67 Date Stamp are all on the same page 9pg 26/56) of his STR (making it less likely that the record of any f/u visit was lost). Literature strongly shows DDD is related to aging.... There is no medical record from the 40+ years between separation from the military and seeking care at the VA. During this time, he worked 20+ years as a mailman. As described in literature, DDD (Degenerative Disc Disease) is a very common incidental finding on MRI, thus of minimal significance in evaluating his back complaints.” The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Id. At the September 2019 hearing, the Veteran testified that he self-medicated himself for his back condition because he could not afford to see a doctor for three years after discharge. He also testified that his back hurt before becoming a mail carrier. He stated that the doctors said that working for U.S. Postal Service as a letter carrier probably had a lot to do with my back, but that he did not believe that was the case. In November 2020, the Veteran provided a lay statement in support of his claim dated July 2014. He stated that as soon as he was hired by the U.S. Postal Service, he received treatment because he had health insurance; however, since so many years have passed, his treatment records were destroyed or purged so he cannot provide them. The Veteran is competent to report matters within his personal knowledge such as symptoms, events that occurred in-service, and past recollections. Layno v. Brown, 6 Vet. App. 465, 469 (1994). While the Veteran is competent to report having experienced symptoms of back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative arthritis of the spine. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). See also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to opinions of the April 2014 examiner and August 2020 examiner. After reviewing the most probative evidence of record, the Board concludes the preponderance of the evidence is against finding the Veteran’s degenerative arthritis/DDD is attributable to service. The Veteran has a current diagnosis of degenerative arthritis of the spine as evidenced by the April 2014 VA examination report. Degenerative arthritis of the spine is a type of arthritis and constitutes an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran was not diagnosed with degenerative arthritis of the spine until April 2014, which was 47 years after his separation from service and more than four decades outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of back pain since service and during the presumptive period, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative arthritis of the spine as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau at 1377 n.4. There is no competent evidence establishing that the Veteran as having degenerative arthritis of the spine to a compensable degree within one year of discharge from active duty, chronic symptoms in service, or continuity of symptoms since discharge. The evidence establishes that the Veteran was not diagnosed until more than four decades after discharge and the most probative medical evidence establishes that the Veteran’s degenerative arthritis of the spine was attributable to working as a letter carrier not military service. Consequently, presumptive service connection for degenerative arthritis of the spine under the “chronic disease” regulations is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, Associate 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.