Citation Nr: 21062787 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-22 726 DATE: October 12, 2021 ORDER Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for a right ring finger disability is remanded. FINDING OF FACT The Veteran's low back complaints in service were acute, and resolved; a chronic low back disability was not manifested in service or for many years thereafter, and any such disability is not shown to be etiologically related to the Veteran's service. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1996 to October 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision. In December 2020, a virtual hearing was held before the undersigned; a transcript is in the record. [The Board notes that in June 2018, the Veteran filed a claim of service connection for the same low back disability currently on appeal. In April 2019, he filed a Notice of Disagreement (NOD) to the July 2018 rating decision, but a January 2020 Statement of the Case (SOC) does not list the low back disability claim. However, a rating decision that adjudicates service connection for a disability that is the subject of a pending appeal for service connection for that same disability is not appealable. See Hamilton v. Brown, 4 Vet. App. 528, 541 (1993). Once a claim for service connection is placed in appellate status, that issue remains part of a pending appeal and cannot be separately appealed by filing a new NOD. There can only be one valid NOD extending to all subsequent Regional Office (RO) and Board adjudications on the same claim until a final RO or Board decision has been rendered in that matter. A Board decision is final if not appealed to United States Court of Appeals for Veterans Claims (CAVC). 38 U.S.C. § 7104. However, a claim on which there is a final decision may be reopened and considered de novo if new and material evidence is received. 38 C.F.R. § 3.156(a). Therefore, further discussion of the June 2018 low back claim is not necessary (although a July 2018 VA back examination conducted in response to the June 2018 claim is considered in the analysis below).] 1. Entitlement to service connection for a low back disability is denied. Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: a current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases, to include arthritis, may be presumed to be service connected if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). An April 1997 service treatment record (STR) notes that the Veteran sustained a right shoulder abrasion. On examination, right lumbar paraspinous muscles were tender, and the assessment was back contusion. A May 1997 STR notes that the Veteran injured his back lifting boxes. He reported a burning sensation in the neck area and that he had fallen down stairs in the previous month. On examination, there was full range of motion (ROM) of the back, the assessment was upper back muscle strain. A June 1997 STR notes that the Veteran reported that he was hit by a door in the upper back, near the left shoulder, area. On examination there was full ROM of the left shoulder joint; the assessment was a contusion. On September 2010 (active duty) service separation report of medical history, the Veteran reported no swollen or painful joints and no recurrent back pain. On September 2010 service separation examination, the Veteran's upper extremities and spine were normal on clinical evaluation. A March 2016 private treatment record notes that the Veteran reported that he sustained a left hip injury 2 weeks prior to seeking treatment, had pain in his left hip and lumbar spine, and did not have a history of previous left hip or lumbar spine surgery. On examination, there was moderate soft tissue tenderness in the left lower lumbar paraspinous area, mildly limited lumbar spine ROM, and pain on weight bearing, swelling, tingling, and weakness. A lumbar spine X-ray showed mild wedge L5 compression fracture, no subluxation, no displacement of fracture fragments, and no neurologic deficit. The impression was chronic left-sided lumbar radiculopathy. An April 2016 private treatment record notes that the Veteran underwent an L4 hemilaminectomy, an L5 laminotomy, an L4-L5 partial facetectomy, and an L4-L5 left-sided discectomy. The post procedure diagnoses were L4-L5 left-sided disc herniation and L4-L5 spinal stenosis. On May 2017 VA back examination, L4-L5 disc herniation, L4-L5 radiculitis, L4-L5 left-side stenosis, and status post L-4 hemilaminectomy, L5 laminotomy, L4-L5 partial facetectomy, and L4-L5 left-sided discectomy were diagnosed. The examiner noted that a review of STRs found that in April 1997 the Veteran was seen for a back contusion after striking his back against a hatch, in May 1997 he was seen for an upper back muscle strain after injuring his back lifting boxes, and in June 1997 he was seen for a soft tissue injury/contusion of the upper back/left shoulder area after being hit in the upper back by a door. On June 2004 retention examination, the Veteran's spine was normal on clinical evaluation; an April 2008 report of medical history notes that he did not report any spine issues in-service, but did report gunshot wounds to his lower back in 1994 (at age 17) prior to service; and on September 2010 service separation examination, his spine was normal on clinical evaluation. He reported that he experienced intermittent back pain after service which became intense for a week in 2010. The back pain gradually worsened until 2016 when he began having difficulty rising out of bed. In early 2016 he had back surgery and now was working full time. He related that he still experiences intermittent low back pain and takes Ibuprofen and Tylenol daily. In a June 2017 VA low back opinion (by the May 2017 examiner), the examiner opined that after a review of all the available medical records, a review of the Veteran's verbal history, and a physical examination, it was less likely than not that the low back disability was related to his service, to include as due to an injury sustained when he was hit by a hatch. She explained that while there was documentation of the event in the STRs in 1997, by the time he was separated from service in 2010, his spine was normal on clinical evaluation, and he reported no back issues in his report of medical history. It was noted that there was no evidence of post-service low back treatment for more than 5 years (until 2016), when he sought treatment at a private orthopedic clinic 2 weeks after a reported lumbar spine and/or left hip injury. She opined that the low back disability and subsequent surgery were due to the 2016 low back injury and that there was no medical evidence supporting a nexus between the claimed low back disability and the event during service. A June 2018 VA treatment record notes that the Veteran reported low back and leg pain that had worsened since his back surgery in April 2016. The provider indicated that the findings were consistent with L4 lumbar radiculopathy. On July 2018 VA back examination (conducted in response to the June 2018 low back claim noted above), the examiner opined that it was less likely than not that the Veteran's low back disability is related to a specific exposure event that he experienced during his service in Southwest Asia. He explained that lumbar spine disc herniation is a disease with a clear and specific etiology and diagnosis and is associated with overuse and trauma, which can result in radiculopathy, better known as sciatica. A November 2018 lumbar spine MRI showed large left-sided disc extrusion at L4-5 with severe left lateral recess stenosis and mild neuroforaminal stenosis at L4-5 and L5-S1. At the December 2020 Board hearing, the Veteran testified that he did not seek low back treatment from a medical provider during service from 2000 to 2010. He also related that he did not have a separation examination in 2010; however, as noted above, in September 2010, he completed a report of medical history, and a completed active-duty service separation examination report is in the record. It is not in dispute that the Veteran has a low back disability, as L4-L5 disc herniation, L4-L5 radiculitis, L4-L5 left-side stenosis, and status post L-4 hemilaminectomy, L5 laminotomy, L4-L5 partial facetectomy, and L4-L5 left-sided discectomy were diagnosed on May 2017 VA examination. It is also not in dispute that during service he was seen in April 1997 for a back contusion, in May 1997 for an upper back muscle strain after lifting boxes, and in June 1997 for a back contusion after being hit by a door. The injuries in service apparently resolved with treatment because on September 2010 separation examination, the Veteran's spine was normal on clinical evaluation. Notably, at the December 2020 virtual hearing, he testified that he did not seek low back treatment from a medical provider during service from 2000 to 2010. The initial post service report of low back pain in the record was in March 2016 (over 5 years after discharge from service) when the Veteran reported left hip and low back pain during private treatment following an intercurrent injury. L4-L5 left-sided disc herniation and L4-L5 spinal stenosis were first diagnosed in April 2016. Consequently, service connection for a low back disability on the basis that such disability became manifest in service and persisted is not warranted. As arthritis of the low back has not been diagnosed, the chronic disease presumptive provisions under 38 U.S.C. §§ 1112, 1137 have no application. What remains for consideration is whether (in the absence of a showing of onset in service and continuity of complaints/symptoms since), the Veteran's current low back disability is otherwise shown to be related to his remote service/complaints and injury therein. That is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The June 2017 and July 2018 VA opinions are probative evidence against the Veteran's claim and the Board finds them (cumulatively) persuasive. The Board finds most probative the June 2017 VA opinion which notes that the provider considered all the available medical records and Veteran's verbal history, and conducted a physical examination. The provider supported the opinion with rationale that accurately cites to factual data. She explained that while there is documentation of the back injuries in the STRs in 1997, by the time of the Veteran's separation from service in 2010, his spine was normal on clinical evaluation, and he reported no ongoing complaints of back pain or other issues in his 2010 report of medical history. Additionally, there was no post service continuity of complaints (as the first records of post service treatment for the back are from 2016, over five years after the Veteran's service discharge). The provider opined that the low back disability and subsequent surgery were due to the 2016 hip and/or back injury (which the Veteran reported occurred two weeks prior to his treatment in March 2016). As the VA examiner's opinion reflects familiarity with the record, and includes a rationale with citation to supporting factual data, the Board finds it to be highly probative evidence in the matter. In the absence of competent evidence to the contrary, the Board finds it persuasive. The Veteran's own assertions that his low back disabilities are due to various incidents in service are not competent evidence in the matter. In the absence of a showing of chronic disability in service or continuity of complaints thereafter, whether there is a nexus between current back disabilities such as the L4-L5 disc herniation, L4-L5 radiculitis, L4-L5 left-side stenosis, and status post L-4 hemilaminectomy, L5 laminotomy, L4-L5 partial facetectomy, and L4-L5 left-sided discectomy shown here and a lifting injury or complaints in remote service is a medical question. The Veteran is a layperson, and does not cite to supporting medical opinion or literature, has not identified any providers of treatment for a low back disability prior to March 2016; as noted above, he testified that he did not seek treatment in service for a low back disability from 2000 to 2010. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply. The appeal in the matter must be denied. REASONS FOR REMAND 2. Entitlement to service connection for a right ring finger disability. A March 2003 STR notes that the Veteran sustained a right ring finger injury when he fell playing basketball. He sought treatment, and the assessment was right finger proximal interphalangeal joint dislocation. The finger was placed in a splint, and he was directed to take Motrin. Although the records in the Veteran's file do not show a current right ring finger disability, his December 2020 Board hearing testimony suggests that he has a current right ring finger disability; at the hearing he displayed to the undersigned his right ring finger, which appears to show a deformity, an angulation of the joint at the interphalangeal joint. He also related that he underwent a VA right ring finger examination. However, a review of the record found that he has not been afforded an examination in connection with this service connection claim. Under such circumstances described, the low threshold standard for determining when VA must provide an examination is met. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The most recent VA treatment records in the claims file are from October 2019. These records may contain pertinent information, and outstanding records of any pertinent treatment must be obtained and considered. VA records are constructively of record. The matter is REMANDED for the following: 1. Secure for the record complete clinical records (any not already associated with the claims file) of all VA evaluations or treatment the Veteran has received for his right ring finger since October 2019. 2. When the action requested above is completed, arrange the Veteran to be examined by an appropriate clinician to confirm the existence, and if found, determine the likely etiology of the claimed right ring finger disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Any studies indicated should be completed, and all pertinent findings should be reported in detail. The examiner should provide responses to the following: (a) Identify (by diagnosis) each right ring finger disability entity found. (b) Identify the likely etiology for each right ring finger disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred during the Veteran's active service (to include the notation in a March 2003 STR of a right ring finger injury sustained while playing basketball)? [The rationale provided must address this allegation.] (c) If the opinion is that a diagnosed right ring finger disability was not incurred in service, identify the etiology that is considered to be more likely (and explain why that is so). Include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.