Citation Nr: 21061276 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 16-34 191 DATE: October 1, 2021 ORDER Entitlement to service connection for a low back condition, to include a pinched nerve, is denied. Entitlement to service connection for a cardiovascular condition manifested by chest pain, to include as secondary to a low back pinched nerve condition, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for tingling in hands, to include pain along pathway to hands, is remanded. Entitlement to service connection for a skin condition is remanded. FINDINGS OF FACT 1. The Veteran's low back condition did not clearly and unmistakably preexist his active service; furthermore, the competent medical evidence does not demonstrate that the Veteran's low back condition was incurred in service or is otherwise attributable to his service. 2. The competent evidence does not demonstrate that the Veteran currently has a cardiovascular condition manifested by chest pain, nor has he experienced such a condition during the pendency of the appeal or recent to the filing of the claim CONCLUSIONS OF LAW 1. Service connection for a low back condition is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a cardiovascular condition manifested by chest pain are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to September 1969. These matters were last before the Board in January 2021, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a July 2021 supplemental statement of the case continuing the denial of each of the enumerated issues listed above, the case was returned to the Board for its adjudication. As a reminder, the Veteran testified at an April 2018 videoconference hearing before the undersigned Veterans Law Judge; a copy of the transcript of that hearing is of record. In view of the facts found, and to provide broader consideration on appeal, the Board has recharacterized the claim of entitlement to service connection for chest pain as one for a cardiovascular condition manifested by chest pain. Service Connection Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). With regard to a showing of chronic disease in service, it is necessary for the Veteran to demonstrate a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Where the disease identity is established, there is no requirement of evidentiary showing of continuity. However, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 1. Low Back Condition The Veteran seeks entitlement to service connection for a low back condition, which he contends began in service as due to the physical demands of his duties and has continued since his separation from service. In the alternative, he asserts that he has been experiencing recurrent low back pain ever since his discharge from service. The first question for the Board is whether the Veteran has a diagnosable low back condition that was incurred in service or is otherwise attributable to an in-service injury, event, or disease. In the alternative, the question for the Board is whether the Veteran has a low back condition that may be considered a chronic disease and which manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has a low back condition, characterized variously as degenerative disc disease and lumbar facet arthropathy, the preponderance of the evidence is against a determination that a diagnosable low back condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (b), (d). In addition, the Board finds that regardless of whether the Veteran has a diagnosable low back condition that may considered chronic in nature, any such condition did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Before addressing the likely etiology of the claimed low back condition, the Board must first contend with the findings of the AOJ below, as the Veteran's service connection claim has been previously denied on the grounds that it was determined that he had a preexisting low back condition. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. In this case, no low back condition was noted upon entrance into service, and so the Board must first evaluate under a "clear and unmistakable" standard whether the psychiatric disorder preexisted service. "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A review of service treatment records reflects that on the April 1967 Report of Medical History that the Veteran prepared upon entrance in the service he reported being involved in a motor vehicle accident in September 1965 and receiving treatment for back pain through to June 1966. However, as stated no diagnosable back condition was noted on the corresponding April 1967 low back condition. Furthermore, the Veteran was only seen for symptoms of a low back condition on one occasion in service, that is, a December 1968 outpatient record shows that he complained of experiencing pain running laterally across the middle of his back. The impression at the time was a back strain, and there are no subsequent records showing continued treatment for any symptoms of a low back condition. Although the Veteran reported a history of experiencing back pain on September 1969 Report of Medical History that he prepared at the time of his separation from service, no low back condition was noted on the corresponding September 1969 examination. Most recently, the Board in its January 2021 remand requested that a VA examiner consider whether the Veteran clearly and unmistakably had a preexisting low back condition. In the resulting May 2021 opinion, the chosen VA examiner found that the evidence that the Veteran had a preexisting low back condition, namely, his self-reported history of being involved in a motor vehicle accident prior to service and receiving treatment for low back pain thereafter, did not satisfy the clear and unmistakable standard. The examiner further commented that if the Veteran did have a diagnosable low back condition at the time that he entered service he would have likely been deferred from enlistment for medical reasons. Upon review of the record, the Board rejects the determination that the Veteran had a preexisting low back condition and concludes that the presumption of soundness still attaches to the Veteran. No low back condition was diagnosed at the time of the Veteran's entrance into service, and the Veteran did not seek treatment for low back symptomatology prior to December 1968, over a year after his enlistment. This finding is corroborated by the determination of the May 2021 VA examiner, who concluded that there was insufficient evidence of a diagnosable preexisting low back condition and commented that if there was such a condition at the time of the Veteran's entrance into service he would not have been allowed to enlist at that time. As the May 2021 examiner thoroughly reviewed the claims file and referred to medical expertise to support her conclusions, the Board finds his opinion to be highly probative. Sklar v. Brown, 5 Vet. App. 140 (1993). Accordingly, in the absence of objective medical evidence tending to show that the Veteran had a diagnosable low back condition at the time of his entrance into service, and in light of the highly probative opinion of the May 2021 examiner, the Board confirms that the presumption of soundness has not been rebutted, and the Veteran did not have a preexisting low back condition. Moving on, the nature and etiology of the claimed low back condition was first evaluated in March 2013, during which time the Veteran reported that he had been experiencing low back pain ever since service. After an in-person evaluation and review of the claims file, the examiner set forth a diagnosis of cervical spondylosis. The examiner then opined that although the Veteran had a preexisting low back condition, it was not permanently aggravated by service. In support thereof, the examiner noted the lack of treatment for a low back condition other than the documented in-service treatment in December 1968. The examiner also highlighted the long span of time after service until the Veteran first sought treatment for back pain in 2005. Pursuant to the Board's previous December 2018 remand instructions, the nature and etiology of the low back condition was again evaluated in August 2020, during which the Veteran reported that he began to experience low back pain in service and continued to experience recurrent low back pain ever since. After a review of the claims file and an in-person examination, the VA examiner confirmed a diagnosis of degenerative arthritis of the spine. The examiner then opined that it was less likely than not that the Veteran's low back condition was incurred in or otherwise attributable to service. In support thereof, the examiner noted only that the Veteran had only one documented instance of receiving treatment for low back pain in service and had no further documented treatment for low back pain until 2004. As stated, the Board in its January 2021 remand instructions directed the AOJ to secure an addendum examination and opinion regarding the likely etiology of the claimed low back condition. In the resulting May 2021 examination, the VA examiner confirmed diagnoses of degenerative disc disease and lumbar facet arthropathy, and then opined that it was less likely than not that the Veteran had a low back condition that was incurred in or otherwise attributable to service. In support thereof, the examiner noted the lack of chronic treatment for a low back condition in service, highlighting that the Veteran did not receive any treatment for his low back after the isolated instance of such in service in December 1968. The examiner also noted that there was no documentation of treatment for low back symptomatology following the December 1968 outpatient record until 2004, over 35 years later. During the April 2018 hearing, the Veteran detailed his various duties during service and noted that all of them required that he lift heavy objects and necessitated extensive physical exertion. According to the Veteran, although he acknowledged that it was not recorded in the available service treatment records, he sought treatment on several occasions in service for low back pain and related symptomatology. A review of submitted private medical records shows that the Veteran began seeking treatment for low back pain in 2004. A December 2006 radiographic evaluation revealed degenerative changes throughout the spine. However, the diagnostic impression was cervical spondylosis. Subsequent private medical records show that the Veteran continued to receive treatment for his private medical care provider until 2012, with low back pain and degenerative spine disease being continually listed in his past medical history. A review of available VA medical records does not show specific treatment or diagnosis of a low back condition. The Veteran has intermittently reported experiencing low back pain, but at no point has a low back condition been diagnosed by his VA treatment providers, nor has he received any specific treatment for low back pain. Upon review of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for a low back condition. The Board acknowledges that the Veteran has continually asserted that his low back pain began in service and has continued without interruption since then. The Veteran is competent to testify as to when his symptoms began. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran's contentions must be considered in light of the objective medical evidence of record to better establish the likelihood of there being a nexus between the Veteran's service and his currently diagnosed low back condition. To that end, the Board notes that it finds the various VA etiology opinions to be sufficiently probative when considered cumulatively. Although the Board has repeatedly remanded the low back claim in order to secure opinions more responsive to the issues under evaluation, it must also be noted that each examiner thoroughly reviewed the claims file and referenced the lack of any treatment or diagnosis of a low back condition in service, other than the one isolated instance n December 1968. Furthermore, each VA examiner discussed the lack of any documented treatment for low back symptomatology for over 35 years following the in-service evaluation in December 1968, to include on the separation examination and corresponding Report of Medical History. Ultimately, the Board's continuing rejection of the successive VA examinations hinged on the fact that the examiners erroneously relied on the Veteran's self-reported history of receiving treatment for a low back condition following a motor vehicle accident when he entered service. As discussed, this alone is not sufficient to support a finding that the Veteran had a preexisting low back condition. Nevertheless, this error was adequately addressed by the May 2021 examiner, who reevaluated the evidence and confirmed that the Veteran did not clearly and unmistakably have a preexisting low back condition upon entrance into service. In summation, the Board finds the May 2021 opinion, representing as it does the cumulative weight of the several VA examiners who previously evaluated the likely etiology of the claimed knee conditions, to be highly probative, in light of the examiner's detailed discussion of the record and consideration of medical literature. Sklar, supra. The absence of objective in-service medical evidence documenting a diagnosis of a low back condition, the lack of continued documented treatment for a low back condition following the one isolated instance in December 1968, as well as the probative VA examiner opinions far outweighs the Veteran's assertion that his low back condition began in service and that his symptoms have continued since his discharge from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As such, the preponderance of the evidence is against the claim of service connection for a low back condition on either a direct basis under 38 C.F.R. § 3.303(a) or based on continuity of symptomatology under 38 C.F.R. § 3.30(b). The Veteran may still be entitled to service connection for a low back condition if all of the evidence establishes that the condition is otherwise attributable to an in-service occurrence. 38 C.F.R. § 3.303(d). As stated above, however, the weight of the objective medical evidence of record is against such a determination, as the opinion of the most recent VA examiner is supported by the weight of the evidence which shows that the Veteran was never evaluated as having a diagnosable low back condition in service and did not have documented treatment for low back symptomatology until 2004, over 35 years after his discharge from service. Furthermore, the Board notes that there is no evidence in the record showing that the Veteran has the medical training, credentials, or other expertise to competently conclude that his low back condition is attributable to service. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). In conclusion, the Board finds that the most recent VA examiner opinion substantially outweighs the lay evidence of record, in light of the rationale presented and the absence of training or credentials on the part of the Veteran. Therefore, the preponderance of the evidence is against the claim of service connection for a low back condition, the benefit-of-the-doubt standard of proof does not apply, and the claim is denied. 38 U.S.C. § 5107(b). 2. Chest Pain The Veteran seeks entitlement to service connection for a cardiovascular condition manifested by chest pain, which he contends is secondary to his separately claimed neck and/or low back conditions. Without delving into the question of the potential etiology of the claimed chest pain condition, the Board finds that the Veteran has never been diagnosed with a cardiovascular condition manifested by chest pain and there is no evidence to suggest that such a diagnosis is appropriate; as such, entitlement to service connection must be denied. During the April 2018 hearing, the Veteran asserted that he would at times experience pain in his chest that shot down his arm. He contended that the symptomatology was attributable to his low back and cervical spine conditions. The Veteran was afforded a VA heart examination in August 2020 to evaluate the nature and likely etiology of any claimed cardiovascular condition. When asked about his claimed chest pain, the Veteran reported that he began experiencing occasional chest pain after coming home from Vietnam. He acknowledged that he sought treatment from a cardiologist and that after undergoing extensive testing all of the results revealed no abnormalities of the heart or cardiovascular system. After a review of the claims file and an in-person evaluation, the examiner declined to endorse any diagnosis of a cardiovascular condition manifested by the Veteran's reported occasional chest pain. As such, the examiner declined to set forth an opinion as to the likely etiology of any claimed cardiovascular condition. In light of the examiner's review of the entirety of the claims file as well as an in-person evaluation, the Board finds the lack of diagnosis to be highly probative. Sklar, supra. A review of available VA and private medical records does not reflect that the Veteran has ever been formally diagnosed with or received treatment through VA for a cardiovascular condition manifested by chest pain. The Veteran first sought treatment through VA in July 2011, at which time he reported a long history of experiencing occasional chest pain. He acknowledged at that time that he sought treatment through his private treatment provider for this chest pain symptomatology but had not received any formal diagnosis for the symptoms. The VA treatment provider at that time did not set forth a diagnosis and speculated only that the pain may have been attributable to the Veteran's cervical spine disorder. Subsequent VA medical records show that occasional chest pain symptomatology was listed as a recurring medical issue without any formal diagnosis to account for the symptoms. A September 2014 outpatient note reflects that at the time of this particular evaluation the Veteran denied experiencing chest pain. He again denied experiencing chest pains during outpatient evaluations dated in November 2018 and in March 2019. Ultimately, there is no competent evidence that the Veteran has a cardiovascular condition manifested by chest pain or chronic symptomatology that suggests that a diagnosis of such a condition would be appropriate. Accordingly, without supporting records, the Board concludes that the Veteran does not have a diagnosable disability that accounts for his claimed chest pain symptomatology and has not had such a condition during the appeal period. The Veteran himself does not have the medical training or credentials to offer an opinion as to a diagnosis or its etiology. Jandreau, supra. Service connection is denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Board previously remanded the claim of entitlement to service connection for sleep apnea in December 2018 in order for the AOJ to secure an opinion regarding the likely etiology of the condition. In the resulting August 2020 examination and opinion, the examiner found it less likely than not that the sleep apnea was incurred in or otherwise attributable to service. However, her rationale only addressed the potential secondary relationship between the Veteran's claimed neck and back conditions and the development of sleep apnea. To date, VA has not secured an opinion that actually addresses whether service connection for sleep apnea is warranted on a direct basis. Although the Board neglected to remand the sleep apnea claim for this purpose in its prior January 2021 decision, nevertheless it must be noted that the August 2020 VA opinion cannot be relied upon, as the examiner did not properly address direct service connection for the condition. As such, remand is necessary in order to secure an opinion that is responsive to the Board's prior December 2018 remand instructions, which are copied in large part below. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for tingling in the hands is remanded. The Board previously remanded the claim of entitlement to service connection for a condition manifested by tingling in the hands in December 2018 in order for the AOJ to secure an opinion regarding the likely etiology of the condition, to include a determination of the likelihood that any such condition was secondary to a cervical spine and/or low back condition. In the resulting August 2020 examination and opinion, the Veteran was diagnosed with ulnar neuropathy, and the chosen VA examiner then opined that it was less likely than not that the Veteran had a condition manifested by tingling in the hands that was incurred in or otherwise attributable to service. Specifically, the examiner focused on whether the Veteran had a cold weather-related hand injury and found an objective examination of the hands to normal, apparently ignoring the fact that the Veteran had a confirmed diagnosis of ulnar neuropathy. Although the Board neglected to remand the hand condition claim for this purpose in its prior January 2021 decision, nevertheless it must be noted that the August 2020 VA opinion cannot be relied upon as the examiner did not address the likely etiology of the clearly diagnosed ulnar neuropathy. As such, remand is necessary in order to secure an opinion that is responsive to the Board's prior December 2018 remand instructions, inasmuch as those instructions apply to the Veteran's diagnosed ulnar neuropathy; those prior remand instructions are copied in large part below. Stegall, supra. 3. Entitlement to service connection for a skin condition is remanded. The Board previously remanded the claim of entitlement to service connection for a skin condition in January 2021 in order to secure an addendum opinion responsive to its prior inquiries regarding the likely etiology of the claimed skin condition. Specifically, the Board noted that the prior VA examiners who had evaluated the likely etiology of the skin condition in opinions dated in March 2013 and in August 2020 did not address the substantial history of the Veteran having sought treatment for dermatological symptomatology in service. The chosen VA examiner was requested to consider this evidence of in-service treatment and determine the likelihood that the Veteran's currently diagnosed skin conditions were incurred in service or are otherwise attributable to service. In the resulting VA opinion dated in May 2021, the examiner found that it was less likely than not that the Veteran's currently diagnosed dermatitis, lentigines, skin tags and hemangiomas) were incurred in or otherwise attributable to service. In support thereof, the examiner acknowledged that the Veteran sought treatment for dermatological symptomatology in service but characterized this symptomatology as being restricted to only bug bites and acne. The examiner stated that the Veteran's currently diagnosed skin conditions were common for people with fair skin that have age and have experienced sun exposure. The examiner further stated that there was no medical literature which supported a determination that having acne would lead to the later development of any of the claimed skin conditions. Finally, the examiner highlighted that the Veteran's skin conditions were formally diagnosed many years after the Veteran's discharge from service. The Board unfortunately cannot rely on this opinion, as it is based on an inaccurate factual premise, namely, that the only dermatological symptomatology exhibited by the Veteran in service was acne and acute residuals of bug bites. A review of the available service treatment records reflects that the Veteran repeatedly sought treatment for recurrent rashes that appeared on different parts of his body during service. Furthermore, he reported a history of experiencing skin problems on the September 1969 Report of Medical History he completed at the time of his separation from service. This medical evidence clearly contradicts the May 2021 examiner's characterization of the extent of the Veteran's dermatological symptomatology during service, as it suggests that his skin problems were far more extensive then discussed by the May 2021 examiner. As such, remand is necessary in order for the AOJ to secure an opinion which complies with the prior remand instructions, which are copied in large part below. Stegall, supra. The matters are REMANDED for the following action: 1. Provide the claims file to a qualified VA medical professional in order to secure an addendum opinion regarding the likely etiology of the claimed sleep apnea and tingling hand condition. The entire claims file, to include a complete copy of this remand, must be made available to the examiner for review, and the chosen examiner must indicate that they reviewed the claims file in its entirety before setting forth any requested opinion. After a thorough review of the claims file, the examiner is asked to opine whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the claimed sleep apnea and/or any diagnosable condition manifested by tingling of hands had its onset in service, or was otherwise the results of a disease or injury in active service. It is essential the examiner discusses the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority. 2. Return the claims file to the May 2021 VA examiner, or to another qualified VA medical professional if that individual is not available, for the purpose of eliciting an addendum opinion as to the likely etiology of any diagnosable skin condition. The entire claims file, to include a complete copy of this Remand, must be made available to the chosen examiner, and that individual must indicate that they reviewed the entire file prior to setting forth any opinion as to the likely etiology of the skin condition. After a thorough review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's skin condition had its onset during service or is otherwise related to active service. The Board specifically requests that the examiner consider, and comment upon as necessary, the numerous in-service records documenting the Veteran's treatment for dermatological symptoms through his period of service, to include on his back, groin area, face, and legs. It is essential the examiner discusses the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.