Citation Nr: 21063636 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 11-16 031 DATE: October 15, 2021 ORDER Entitlement to service connection for a low back disability and right leg sciatica, to include secondary to service-connected postoperative right shoulder rotator cuff arthropathy and/or service-connected reflex sympathetic dystrophy and ulnar nerve neuropathy is denied. FINDING OF FACT The preponderance of the evidence shows a low back disability and right leg sciatic was not caused or aggravated by service-connected postoperative right shoulder rotator cuff arthropathy and/or service-connected reflex sympathetic dystrophy and ulnar nerve neuropathy. CONCLUSION OF LAW The criteria for service connection for a low back disability and right leg sciatica, to include secondary to service-connected postoperative right shoulder rotator cuff arthropathy and/or service-connected reflex sympathetic dystrophy and ulnar nerve neuropathy have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REFERRED The issue of entitlement to compensation under 38 U.S.C. § 1151 for a back condition was raised by the record and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1991 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded this issue in January 2021 for further development. Although there has not been substantial compliance with the January 2021 remand directives, that error is harmless and is discussed in further detail below. Stegall v. West, 11 Vet. App. 268, 271 (1998). This issue is properly before the Board for adjudication. The Veteran requested to keep the record open for 60 days in order to submit additional evidence in support of his claim. As such, the undersigned Veterans Law Judge held the record open for 60 days following the date of the August 3, 2021 letter. The January 2021 Board remand, in part, directed the RO to obtain a VA medical opinion discussing whether the Veteran's claimed back disability and right left sciatica was caused or aggravated by active service. A March 2021 VA examiner opined that the claimed back disability was less likely related to active service because there was no evidence in the Veteran's service treatment record of "any type of chronic or frequently recurrent lumbar condition." A rationale based entirely on lack of records is inadequate. Moreover, compliance with a remand is not discretionary and failure to comply with the terms of a remand requires another remand to remedy the non-compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the VA examiner did not address whether the Veteran's diagnosed degenerative arthritis of the lumbar spine manifested during service or within one year of discharge, or whether there was a continuity of symptomatology pursuant to 38 C.F.R. § 3.303, 3.309. As this concerns the potential to affect the outcome of the Board's determination, it requires preliminary discussion before proceeding to the merits of the secondary service connection claim. The United States Supreme Court provided a general framework for a harmless error analysis in Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Pursuant to the guidance in Sanders, the Court of Appeals for Veterans Claims (CAVC) held that prejudice is established by demonstrating a disruption of the essential fairness of the adjudication, which can be shown by demonstrating that the error (1) prevented the claimant from effectively participating in the adjudicative process, or (2) affected or could have affected the outcome of the determination. See Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Simmons, CAVC noted that a harmless error determination is conducted through case-specific application of judgment without relying on mandatory presumptions of prejudice. VA claimants are entitled to a fair adjudicative process that includes certain rights and procedural safeguards. See, e.g., Thurber v. Brown, 5 Vet. App. 119, 123 (1993) ("The entire thrust of [] VA's nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process."); Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993) (holding that VA claimants must be afforded "full benefits of... procedural safeguards" afforded by statutory and regulatory provisions establishing "extensive procedural requirements to ensure a claimant's right to full and fair assistance and adjudication in the VA adjudication process"). When an error abrogates the essential fairness of the adjudication or deprives a claimant of a meaningful opportunity to participate in the processing of their claim, the error has the "natural effect" of being prejudicial. See Sanders, 556 U.S. at 411; see also Overton v. Nicholson, 20 Vet. App. 427, 434-35 (2006) ("A procedural or substantive error is prejudicial when the error affects a substantial right that a statutory or regulatory provision was designed to protect." (citing McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984))). In the instant appeal, the Veteran alleged that his low back disability and right leg sciatica were caused by service-connected disabilities. Specifically, he stated his low back and sciatica disabilities are secondary to his service-connected right shoulder disability in his original claim for service connection submitted in April 2007 and a September 2008 statement. In April 2010 the Veteran stated he never had complaints of lower back pain or sciatica issues prior to treatment for his right shoulder and ulnar nerve disabilities. Since his right shoulder surgery and nerve stimulator implantation, the Veteran reported severe back pain, muscle spasms, difficulty rising from bed, right leg weakness and radiculopathy, and difficulty walking and standing. The Veteran stated that physicians diagnosed degenerative disc disease and intervertebral narrowing of the lumbosacral spine in 2007 and he had no back injuries since service. The Veteran repeatedly held the belief that his lumbar spine and lower right extremity disabilities are caused or aggravated by his service-connected disabilities and has not contended otherwise. See NOD November 2009, Correspondence March 2010, Statement in Support of Claim July 2014 and August 2021, Lay Statement July 2015. The Board finds that the Veteran did not file a claim for direct service connection, presumptive service connection pursuant to 3.309, nor that his back and right leg disabilities manifested continuous symptomatology since service. For VA compensation purposes, a "claim" is defined as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). Informal claims were allowable before a change in the governing regulations that became effective on March 24, 2015 that eliminated constructive receipt of claims and informal claims. However, because informal claims were allowed during the appeals period in question here, the Board has reviewed all communications from the Veteran that may be interpreted as an application or claim, both formal and informal, for a claim for direct service connection, service connection on a presumptive basis, continuity of symptoms after discharge. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Ultimately, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Veteran's April 2007 initial claim and subsequent written communication submitted through August 2021, including a statement from his spouse, unequivocally demonstrates the Veteran's claim was limited to service connection as a result of his service-connected right shoulder injury and reflex sympathetic dystrophy and ulnar nerve neuropathy, while denying he incurred any back injury or pain during service. The record makes it clear that the Veteran never claimed, nor is it reasonably raised by the record, he sought compensation for his disability under direct service connection and/or on a presumptive basis. The Board also finds that the March 2021 VA examiner's failure to adequately address the question of direct service connection or service connection on a presumptive basis or continuity of symptoms does not affect or could have affected the outcome of this decision. Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Arthritis (degenerative disc disease) may be service connected on a presumptive basis if manifested to a compensable degree within one year. 38 U.S.C. §§ 1112, 1113; 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service treatment records confirm the Veteran's decade-long assertion that he did not suffer from a back injury or right lower extremity neuropathy during service. The Veteran denied recurrent back pain, back injury, use of a brace or back support, arthritis, rheumatism, bursitis, nerve injury, paralysis, and neurological disorders in March 1998 and March 1999. Without evidence of a disease or injury in service a claim for direct service connection cannot stand. The Veteran also stated that he was diagnosed with degenerative disc disease in 2007, approximately eight years since discharge and that he did not experience recurrent or chronic back pain. The Board highlights that the Veteran's spouse reported she was with her husband since he was 19 years old, and he never incurred "a back injury or suffered from any other back problems." Based on medical and lay evidence of record, including submitted statements and the Veteran's assertions, a remand for additional development would not affect the outcome of his claim for secondary service connection. The Board has not found errors that affect essential fairness or deprive the Veteran of an opportunity to participate in meaningful pursuit of his claim for service connection. He was provided with notice of the procedures and information required to substantiate his claim, the RO's rating decisions denying his claim, the Statement of the Case, and the Supplemental Statement of the Case. As such, remand for further development is not warranted as any error by the RO is harmless. Entitlement to service connection for a low back disability and right leg sciatica due to service-connected postoperative right shoulder rotator cuff arthropathy and/or service-connected reflex sympathetic dystrophy and ulnar nerve neuropathy is denied. The Veteran contends service connection for his low back disability and right leg sciatica is warranted because it was caused or aggravated by his service-connected postoperative right shoulder rotator cuff arthropathy and/or service-connected reflex sympathetic dystrophy and ulnar nerve neuropathy. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may be established for a disorder that is caused or aggravated by a service-connected disability. Id. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 44748 (1995). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511 (1998). The Veteran's lumbar and lower right extremity disabilities are well documented, and he was awarded service connection for postoperative rotator cuff arthropathy and reflex sympathetic dystrophy and ulnar nerve neuropathy, effective July 29, 1999. Wallin elements (1) and (2) are met. An October 2006 VA examination indicates that the Veteran reported he had no back pain. The Veteran was afforded a VA examination in May 2007. The Veteran indicated that he had a spinal cord nerve stimulator implanted six years prior and that his low back problems began six months prior. The examiner indicated that the battery implant on the back was in the lumbar region to the right of the midline. The examiner did not do an examination of the back. The examiner indicated that his opinion was that the right side sciatica was not due to the battery pack as the tip of the lead was in the lower cervical region and this would not affect the lumbar nerve roots are far below the level of the tip of the lead of the nerve stimulator. The Veteran underwent a VA examination in September 2020. The examiner opined that his right lower extremity radiculopathy was secondary to his lumbar disability. The examiner failed to provide an opinion discussing whether the claimed lumbar disability was caused by or aggravated a service connected disability. A March 2021 VA examiner opined that the Veteran's claimed disability was less likely caused or aggravated by service-connected postoperative right shoulder rotator cuff arthropathy and/or service-connected reflex sympathetic dystrophy and ulnar nerve neuropathy. The examiner based this opinion on the absence of medical records showing any type of cause-and-effect relationship between the service-connected shoulder disability and claimed disability. The examiner also stated that there was no plausible pathophysiologic mechanism or known medical principle that would explain a causal relationship between the claimed disability and the Veteran's service-connected disabilities. VA obtained an addendum medical opinion in April 2021. The examiner, a licensed Doctor of Osteopathic Medicine, opined that the Veteran's claimed disability was not secondary to or aggravated by his service-connected postoperative right shoulder rotator cuff arthropathy and/or service-connected reflex sympathetic dystrophy and ulnar nerve neuropathy. He explained that the service-connected disabilities, degenerative disc disease, degenerative joint disease, spinal stenosis of the lumbar spine are separate and distinct conditions which affect different regions of the body. The examiner believed that insertion of a nerve stimulator and battery pack did not cause or aggravate the Veteran's disability because the service-connected disabilities are conditions of the upper appendicular skeleton whereas the claimed disabilities are conditions that develop overtime and progress with age. The Board finds that the preponderance of the evidence shows the Veteran's low back disability and right leg sciatica was not caused or aggravated by his service-connected postoperative right shoulder rotator cuff arthropathy and/or service-connected reflex sympathetic dystrophy and ulnar nerve neuropathy. The April 2021 VA examination report is highly probative, sufficiently rationalized, and based on a thorough review of the record. (Continued on the next page) Consideration has also been given to lay statements that the Veteran's service-connected postoperative right shoulder rotator cuff arthropathy and/or service-connected reflex sympathetic dystrophy and ulnar nerve neuropathy caused or aggravated his current low back and sciatica disabilities. However, while lay persons are competent to provide opinions on some medical issues, the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds greater probative weight in the competent VA examination report which found the Veteran's service-connected postoperative right shoulder rotator cuff arthropathy and/or service-connected reflex sympathetic dystrophy and ulnar nerve neuropathy did not cause nor aggravated his low back and right leg sciatica disabilities. Accordingly, service connection on a secondary basis is not warranted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.