Citation Nr: 21062280 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 14-15 955A DATE: October 6, 2021 ORDER Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for right inguinal hernia repair is remanded Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded Entitlement to service connection for diabetes mellitus is remanded Entitlement to service connection for coronary artery disease (CAD) is remanded Entitlement to service connection for a neck disability is remanded Entitlement to service connection for hypertension is remanded Entitlement to service connection for hemorrhoids is remanded Entitlement to service connection for renal failure is remanded Entitlement to service connection for colitis is remanded Entitlement to service connection for a bilateral shoulder disability is remanded FINDING OF FACT The most probative evidence of record shows the Veteran's chronic low back condition developed decades after separation, with no objective evidence of continuity of symptomatology, and no etiological link between the condition and any aspect of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Unfortunately, the Veteran died during the pendency of the appeal. His surviving spouse has been accepted as the substitute party and is the appellant in these matters. These claims were before the Board on several occasions, most recently in March 2021, when they were dismissed without prejudice owing to the Veteran's death. The appellant having been subsequently substituted with respect to these claims, they now return to the Board for appellate review. The claimant has not raised any issues with the duty to notify or 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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Entitlement to service connection for a low back condition Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The appellant in this matter contends that the Veteran was beset by a lower back disability that had its onset in service, with continuity of symptomatology since separation. The record reflects that the Veteran complained of low back pain in 1972, attributing it to heavy lifting, for which he received no treatment, but due to which he was temporarily proscribed from lifting over 20 pounds. Separation examination records do not reflect low back-related complaints, and service records do not reflect an ongoing problem or recurrence of low back symptoms. Moreover, post-separation medical records do not reflect any low back issues until nearly 20 years following separation, and by the Veteran's own acknowledgment, he did not experience low back pain following service until 1989. See March 2019 VA examination report. A VA examiner with whom the Veteran met in February 2013 confirmed a current diagnosis of degenerative disc disease of the lumbar spine, but opined that the condition was less likely than not related to service, reasoning that service records demonstrated the Veteran's 1972 back pain had resolved without recurrence, and that a substantial gulf of time elapsed after separation before the Veteran advanced new low back complaints. Because the examiner did not accurately characterize service records, which showed multiple low back-related complaints in early 1972, the matter was remanded for an additional exam, conducted in March 2019. The March 2019 VA examiner agreed that the Veteran's low back condition was less likely than not related to service, emphasizing the lack of treatment or complaint until 1989, at which time the Veteran was working as a bricklayer and truck driver. Further, the examiner indicated that service records reflected only an acute low back condition, with no ongoing symptomatology. The examiner also pointed to the normal separation examination and the Veteran's own acknowledgment with respect to onset in 1989 in support of her conclusion. The Board finds the March 2019 VA examiner's opinion to constitute the most probative evidence of record with respect to etiology in this case. The opinion is well-reasoned, fully explained, and predicated on an in-person examination of the Veteran and a thorough records review. Critically, it is uncontroverted by any objective or opinion evidence in the record. While the Board has considered with sympathy the Veteran's and the appellant's lay statements, it cannot afford great probative weight to these assertions with respect to the etiology of low back condition in this case. While the lay statements are competent with respect to the Veteran's experiences and symptoms since service, they are not competent as nexus opinions regarding the nature and etiology of that condition. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of his symptoms are relevant, competent, and credible; however, the question of the presence, nature, and etiologies of the claimed condition is limited to the purview of someone with medical knowledge and training, such as the VA medical examiners in this case. In sum, the evidence does not show that it is at least as likely as not that the Veteran's low back condition had its onset in service, or is etiologically related to service. The probative value of the lay assertions is outweighed by the probative value of the thorough and reasoned opinion of the March 2019 VA examiner. As the preponderance of the evidence is against the claims, service connection for a low back condition must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. The claims for entitlement to service connection for status post right inguinal hernia repair, GERD, diabetes mellitus, CAD, a neck disability, hypertension, hemorrhoids, renal failure, colitis, and a bilateral shoulder condition are remanded The claims on appeal require further development before they can be finally adjudicated. Regarding the colitis and GERD claims, the Board finds the August 2016 VA examiner's opinion inadequate; specifically, the record reflects complaints of frequent diarrhea and nausea during the appeal period, which findings are inconsistent with the examiner's assessment that the Veteran did not have any current gastrointestinal disability, and the examiner did not reconcile adequately his assessment with the evidence of record. Regarding the diabetes mellitus claim, the Veteran theorized that his diabetes was secondary to hypertension, specifically claiming that medicine prescribed for treatment of hypertension had caused or aggravated his diabetes. An October 2014 VA assessment tends to support this contention. The Board observes that service connection for hypertension is herein on appeal, and shall be remanded, as explained below, and consequently, the diabetes claim is inextricably intertwined therewith and must be remanded as well. Regarding hemorrhoids, the August 2016 VA examiner indicated there was "no current evidence" of hemorrhoids on examination, but did not address adequately the Veteran's contention that hemorrhoids were present during the appeal period. On remand, a records review must be conducted and an adequate opinion obtained as to whether hemorrhoids were present during the appeal period, to include on an episodic basis, and if so, whether they were etiologically related to any aspect of active duty service. Regarding the balance of the claims, the Veteran was never afforded VA examinations in connection with them during his lifetime, and the record is as yet bare of VA examiners' assessments as to etiology. The Board observes that during the appeal period, the Veteran had received diagnoses of CAD, chronic whole-body pain, diffuse osteoarthritis, chronic kidney disease, hypertension, and right inguinal hernia. On remand, the claims file must be forwarded to qualified VA examiners for review and opinions as to etiology. The matters are REMANDED for the following action: 1. Forward the claims file to a qualified VA examiner to explore the etiology of the Veteran's claimed disability associated with right inguinal hernia repair. The claims file should be reviewed by the examiner in conjunction with this request. The examiner should list all disabilities associated with the hernia repair that were present during the appeal period. For each diagnosed condition, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 2. Forward the claims file to a qualified VA examiner to explore the etiology of the Veteran's claimed GERD and colitis. The claims file should be reviewed by the examiner in conjunction with this request. The examiner should list all gastrointestinal disabilities that were present during the appeal period. The examiner should note the Veteran's reported complaints of diarrhea and nausea during the appeal period. For each diagnosed condition, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 3. Forward the claims file to a qualified VA examiner to explore the etiology of the Veteran's claimed CAD. The claims file should be reviewed by the examiner in conjunction with this request. The examiner should list all heart conditions that were present during the appeal period. For each diagnosed condition, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 4. Forward the claims file to a qualified VA examiner to explore the etiology of the Veteran's claimed cervical spine disability. The claims file should be reviewed by the examiner in conjunction with this request. The examiner should list all disabilities of the cervical spine that were present during the appeal period. For each diagnosed condition, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 5. Forward the claims file to a qualified VA examiner to explore the etiology of the Veteran's claimed hypertension. The claims file should be reviewed by the examiner in conjunction with this request. The examiner should state whether the Veteran had a diagnosis of hypertension during the appeal period. If so, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 6. Forward the claims file to a qualified VA examiner to explore the etiology of the Veteran's claimed hemorrhoids. The claims file should be reviewed by the examiner in conjunction with this request. The examiner should state whether the Veteran had hemorrhoids during the appeal period, to include on an episodic basis. If so, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 7. Forward the claims file to a qualified VA examiner to explore the etiology of the Veteran's claimed chronic kidney disease. The claims file should be reviewed by the examiner in conjunction with this request. The examiner should list all kidney conditions that were present during the appeal period. For each diagnosed condition, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 8. Forward the claims file to a qualified VA examiner to explore the etiology of the Veteran's claimed bilateral shoulder disability. The claims file should be reviewed by the examiner in conjunction with this request. The examiner should list all disabilities of either shoulder that were present during the appeal period. For each diagnosed condition, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the condition began in service or is otherwise related to service. 9. Forward the claims file to a qualified VA examiner to explore the etiology of the Veteran's claimed diabetes mellitus. The claims file should be reviewed by the examiner in conjunction with this request. The examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that diabetes began in service or is otherwise related to service. If diabetes is not directly related to service, the examiner should state whether, on an at least as likely as not basis, diabetes was caused or aggravated beyond its normal course of progression by hypertension, to include as a consequence of medication prescribed in treatment of hypertension. 10. Review the examination reports and all opinions expressed to ensure they are in compliance with this remand's directives and implement corrective procedures if required. 11. Then, readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.