Citation Nr: 21005240 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-42 233 DATE: January 29, 2021 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for sciatica of the lower extremities, as secondary to the now service-connected back disability, is granted. Entitlement to service connection for a left hip disability is denied. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s back disability began during or is otherwise related to his military service. 2. The Veteran’s sciatica of the lower extremities was caused by the now service-connected back disability. 3. The weight of the evidence is against finding that the Veteran’s left hip disability was incurred in service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for sciatica of the lower extremities have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1969 to June 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In May 2018, the Board remanded the matters to the Agency of Original Jurisdiction (AOJ) for additional development. Beyond the above, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and has been receiving entitlement to a total disability rating based on individual unemployability (TDIU) from August 22, 2012. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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). Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, including arthritis or other organic diseases of the nervous system, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service, but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) only apply to a chronic disease listed in § 3.309(a)). 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 claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a back disability. The Veteran contends he has a back disability that manifested during active duty service. A VA examination and VA treatment records show degenerative arthritis of the spine has been diagnosed. In the May 2018 remand, the Board found the Veteran’s reports of falling from a moving Jeep during service to be credible. Therefore, the remaining question before the Board is whether the Veteran’s back disability began during, is caused by, or is otherwise etiologically related to his military service. The Board has reviewed the record and finds that there is evidence both for and against the claim. The evidence against the claim includes the Veteran’s service treatment records, a September 1975 VA X-ray report, a March 2015 VA examination report, and a December 2019 VA addendum opinion. The Veteran’s service treatment records, including an April 1971 report of medical history, are silent for complaints related to a back disability. A September 1975 VA X-ray of the Veteran’s lumbar spine was noted to be normal. The Veteran was provided a VA back examination in March 2015. The examiner diagnosed mild degenerative arthritis of the spine. The Veteran reported he experienced continuous back pain from when he fell off the Jeep during active duty service. The examiner opined the low back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She explained that the Veteran’s service treatment records are silent for back trouble and that the mild degenerative changes are most likely age-related. In a December 2019 addendum opinion, a VA examiner opined the low back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the earliest objective evidence of ongoing back pain is the September 1975 VA examination report, which noted an X-ray of the spine was normal. She also noted a June 2012 MRI showed minimal degenerative changes, which would be an expected finding for someone of the Veteran’s age. The evidence in favor of the claim includes a September 1975 VA examination report; December 2011 statements from people who know the Veteran; a June 2012 VA treatment record; and the Veteran’s consistent reports that he’s experienced back pain since the in-service accident. Notably, the Veteran filed a claim for service connection for a back disability in September 1975. He was provided a VA examination that same month. The Veteran reported he had been experiencing back pain since he injured his back when he fell out of a Jeep in 1969. An X-ray of the lumbosacral spine was normal. The examiner diagnosed a history of chronic muscle strain. In December 2011 statements, acquaintance of the Veteran reported they had known him for almost 20 years and witnessed his back disability increase in severity during that time. In a separate statement, his spouse reported she had known him since 1987 and witnessed him having difficulties with his back since that time. A June 2018 VA treatment record notes the Veteran reported he had low back pain since he was thrown from the Jeep in service. The Board finds the evidence for and against finding the Veteran’s back disability manifested during service is of equal weight. In the May 2018 remand, the Board found the March 2015 examiner’s opinion was inadequate because the examiner improperly discounted the Veteran’s credible statements regarding the in-service accident and relied primarily on negative evidence. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Notably, the December 2019 examiner also relied in part on negative evidence, noting there was not objective evidence that the Veteran experienced back pain between his discharge from service and when he filed his first claim in 1975. She also did not address the September 1975 examiner’s diagnosis of a history of chronic muscle strain. Accordingly, the examiner’s opinion is of limited probative value. The Board acknowledges that the service treatment records are silent for a back disability and that the September 1975 X-ray was noted to be normal, but the Board finds this evidence does not outweigh the evidence that supports the Veteran’s claim, including his consistent reports of experiencing back pain since service. Importantly, the Veteran is competent to report he has experienced back pain since the reported in-service injury, and the Board finds his statements are credible as they are supported by the September 1975 VA examination report, statements from his spouse and friends, and his VA treatment records, as described above. 38 C.F.R. § 3.303; Walker, 708 F.3d 1331. The Board acknowledges that there are no supporting medical opinions specific to the claim, but the Veteran’s post-service treatment records show he consistently reported his back pain began after he fell from a Jeep during service, even when he first sought service connection in 1975. This evidence corroborates the Veteran’s assertion that he experienced ongoing back pain since service. The Board finds the evidence for and against the claim is in relative equipoise and therefore resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, service connection for a back disability is warranted. 2. Entitlement to service connection for disabilities of the lower extremities. The Veteran is seeking entitlement to service connection for left and right leg disabilities manifested by pain secondary to the (now) service-connected back disability. The Board notes that the Agency of Original Jurisdiction adjudicated the issue as entitlement to service connection for peripheral neuropathy of the lower extremities, but the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a disability claim includes any disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran as a layperson is not required to know his specific diagnosis, and his allegation of his claim is broad enough to be recharacterized as entitlement to service connection for a bilateral leg disability, to include as secondary to the now service-connected back disability. To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310, Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran filed his claim for service connection in September 2011. A February 2012 treatment record notes the Veteran reported he injured his back and hip while in Vietnam. He complained of low back and right hip pain. A May 2012 VA treatment record notes the Veteran complained of back pain radiating down his left leg. Sciatica was assessed. A September 2012 treatment record notes he had significant low back pain and sciatica. The Veteran was provided a peripheral nerve VA examination in October 2012. The examiner noted an electromyography (EMG) did not reveal evidence of neuropathy or radiculopathy of the lower extremities. However, the examiner separately noted a June 2012 MRI showed left lateral disc herniation that “may but the left L5 nerve root and results in mild left neural foraminal narrowing” and diagnosed left-sided sciatica. The March 2015 VA back examiner indicated the Veteran did not have radiculopathy or any other neurologic abnormalities related to the back disability. VA treatment records show sciatica continues to be listed as an active problem. The Board acknowledges the October 2012 and March 2015 VA examiners concluded the Veteran did not have neuropathy or radiculopathy, but finds these opinions do not directly contradict the findings documented in earlier treatment records. The 2012 treatment records show that the Veteran complained of pain in both lower extremities in relation to the now service-connected back disability and that his treatment providers diagnosed sciatica in response. Notably, the October 2012 examiner specifically diagnosed left-sided sciatica. Therefore, given the competent and credible medical evidence showing that the Veteran has sciatica of the lower extremities due to the back disability, the Board finds that the criteria for service connection for sciatica of the left and right lower extremities have been met. 3. Entitlement to service connection for a left hip disability. The Veteran contends he has a left hip disability that manifested during active duty service. VA examination reports and VA treatment records show a degenerative arthritis of the left hip has been diagnosed. In the May 2018 remand, the Board found the Veteran’s reports of falling from a moving Jeep during service to be credible. Therefore, the remaining question before the Board is whether the Veteran’s left hip disability began during, is caused by, or is otherwise etiologically related to his military service. The Veteran’s service treatment records, including an April 1971 report of medical history, are silent for complaints, treatment, or diagnoses related to a left hip disability. In December 2011 statements, acquaintance of the Veteran reported they had known him for almost 20 years and witnessed him experience increasing left hip pain during that period. In a separate statement, his spouse reported she had known him since 1987 and witnessed him having difficulties with his hips since that time. A January 2012 treatment record notes the Veteran complained of left hip pain that he had been experiencing for years. The treatment provider noted the Veteran was a truck driver and never took his large wallet out of his back pocket while driving. Pyriformis syndrome was assessed. An X-ray showed bilateral hip arthritis and a rod implanted in the left femur. The Veteran requested another X-ray because he reported he did not recall having a rod placed in his femur. A follow-up X-ray showed evidence of a previous intramedullary rod within the femur, but not residual metal densities were present. The Veteran was provided a VA hip examination in December 2019. The examiner diagnosed left hip arthritis. The Veteran reported the condition began in 1970 when he fell off the Jeep in service. The examiner opined the left hip disability is less likely than not incurred in or caused by the claimed in-service injury. She explained that while the Veteran reported experiencing pain since he fell from the Jeep, his separation examination did not note any hip-related complaints and that the first documentation of hip pain following service was not until 2012. An X-ray at that time showed mild degenerative changes only, which she indicated was an expected finding for someone of the Veteran’s age. Accordingly, the record does not show, and the Veteran has not asserted, that the left hip arthritis manifested in the first post-service year. Therefore, the Board finds that the presumption for chronic diseases found at 38 C.F.R. § 3.309(a) does apply to the current claim. Service connection for left hip arthritis can nonetheless be established on the basis that such disease resulted from service if affirmative evidence shows such causation. 38 C.F.R. § 3.303(d). The Board finds the December 2019 VA examiner’s opinion is probative regarding this matter, because it is based on examination of the Veteran and review of the record and is supported by an explanation that contains clear conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner acknowledged the Veteran’s reports of the in-service injury and experiencing left hip pain since that time. Importantly, it does not appear that the examiner found the Veteran’s description of the in-service injury to be not credible, only that his reports of ongoing pain were not credible because post-service treatment records show he sought treatment for other disabilities following service, but did not seek treatment for left hip pain until 2012. The Board finds the examiner’s opinion is also supported by the January 2012 treatment record. While the Veteran reported he had been experiencing left hip pain for years, he did not indicate he believed it was related to service. In addition, the treatment provider associated the hip pain with the Veteran’s post-service employment as a truck driver. Unfortunately, the Board also cannot find the Veteran’s assertion that he has experienced left hip pain since service to be accurate. Notably, the Veteran did not indicate he also injured his left hip during the in-service accident while seeking service connection for a low back disability in 1975 or when seeking treatment for left hip pain in January 2012. In addition, the September 1975 VA examiner noted the Veteran did not report a radiation of the low back pain. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection). It is important for the Veteran to understand that the Board’s credibility determination is in no way a judgment on his honesty or character. The Board recognizes the Veteran was being asked to recall events that occurred decades earlier and notes this determination only applies to the specific assertion that symptoms of a left hip disability had persisted since service. The Board has considered the Veteran’s general assertion that his left hip disability is related to his service. However, because he is a layperson, he is not competent to opine on the etiology of a musculoskeletal disability, which is a medically complex question. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). (Continued on the next page)   The Board has also considered the statements submitted by the Veteran’s spouse and friends in December 2011, but finds they are of limited probative value and do not meet or outweigh the probative value of the December 2019 VA examiner’s opinion. Even if the Board found the reports of observing the Veteran experience hip pain to be credible, the earliest observation would be from more than 15 years after the Veteran was discharged from active duty service. In the absence of competent evidence linking the Veteran’s left hip disability to service, a preponderance of the evidence is against the claim. Accordingly, service connection for a left hip disability must be denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.