Citation Nr: 21065158 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 10-03 236 DATE: October 25, 2021 ORDER Entitlement to service connection for a back disorder is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure and as secondary to service-connected diabetes mellitus, is remanded. FINDING OF FACT The Veteran's back disorder did not manifest in service or within one year thereafter and is not otherwise related to his military service. CONCLUSION OF LAW A back disorder was not incurred in active service, nor may arthritis be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2013. A transcript is of record. The Board remanded the case for further development in October 2013, August 2014, and September 2020. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist with regard to the issue decided herein. 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 may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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. As arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 arthritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for a back disorder. In his January 2010 substantive appeal, the Veteran reported that he was involved in a car accident in 1973 or 1974 during Labor Day weekend and that he was hospitalized for two weeks. During the October 2013 hearing, the Veteran testified he had an automobile accident during active duty around 1974, which resulted in three broken bones in his lower back, an inpatient stay in a military hospital for at least two weeks, a two-to-three-month profile for being unable to work, and light duty for six months. He stated that the accident occurred while heading home for Labor Day weekend in a rented Winnebago and that he was forced off the road and rolled. He also indicated his initial back problems began at that time. The Veteran's complete service treatment records are unavailable. Multiple requests have been made for those records for the entire period of the Veteran's military service; however, in December 2020, it was noted that some of the records could not be located, that all efforts have been exhausted, and that further attempts would be futile. The claims file does contain service treatment records dated in 1967 and from 1981 to 1987. Those available service treatment records, including records dated after the reported accident, do not document any complaints, treatment, or diagnosis of a back disorder. They do document numerous other medical problems, including complaints pertaining to the Veteran's feet, wrist, knee, and shoulder. Although there is no separation examination available for review, a February 1983 periodic report of medical examination, which was performed subsequent to the reported motor vehicle accident around 1973 or 1974, shows that the Veteran's spine was normal upon clinical evaluation. There is no evidence that the Veteran had arthritis at separation or within one year thereafter. Arthritis must be objectively confirmed by x-Ray. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Thus, the Veteran is not entitled to service connection for arthritis of the spine, either as a chronic disease incurred during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d at 1335-1337. Post-service medical records also do not show any complaints or treatment of the Veteran's back until 1996. Specifically, in March 1996 medical records, the Veteran was documented as having mild lumbar spine/lower back pain from lifting a bag. He did not report any history of a prior accident. He indicated that he had had back pain for three to four days, which was radiating from his back to both legs. The Veteran was also evaluated in May 2006 at which time the thoracic spine had normal mineralization with no obvious compression fractures. In October 2006, the Veteran reported having chronic lower back pain. VA medical treatment records dated in February 2007 further show that the Veteran reported having low back pain since an accident in the 1990s, which would have been after his military service. He indicated that he had sustained fractures of his lumbar spine at that time, but did not require surgery. It was also noted that the Veteran worked as a janitor and performed a lot of lifting and bending. An August 2007 whole body bone scan showed mild diffuse uptake was at the L5-S1 vertebral body level. The impression was degenerative changes at L5-S1 without evidence of osteoblastic metastatic disease. In October 2008, the Veteran reported that he had chronic back pain. In June 2009, it was noted that he had a long history of low back pain with pain at times radiating down the right leg, but that there had been no major trauma. A December 2015 VA medical record shows mild multilevel degenerative changes of the thoracic spine without acute osseous abnormality. The Board does acknowledge the Veteran's statements that he has had back problems since his military service. The Board notes that the Veteran is competent to report his experience and symptoms in service and thereafter. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or she has first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although the Veteran is competent to report symptoms since service, the Board finds that such statements are not reliable or credible. His reports are inconsistent with the contemporaneous record. As previously noted, the available service treatment records do not document any complaints, treatment, or diagnosis of a back disorder following the reported accident, despite reports of other orthopedic and musculoskeletal problems. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). A subsequent physical examination had also found the Veteran's spine to be normal. Thus, there was affirmative evidence showing that he did not have a back disorder following the reported accident (as opposed to the mere absence of evidence). The Veteran has also made inconsistent reports regarding the onset of his back disorder. As previously noted, in March 1996, he reported only having back pain for three to four days after lifting, and in February 2007, he reported having low back pain since a post-service accident in the 1990s. Such statements contradict his report that he has had back problems that have continued since service. For these reasons, the Board finds that the Veteran's reported history regarding the onset and continuity of the disorder to be not reliable or credible. In addition to the lack of evidence showing that a back disorder manifested during active service or within close proximity thereto, the weight of the evidence of record does not link any current back disorder to the Veteran's military service. The Veteran was afforded a VA examination in March 2014 in connection with the claim for service connection for a back disorder. The examiner diagnosed him with degenerative arthritis of the spine, but opined that the disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He noted that the Veteran only reported treatment for the condition from 1994 to 1995. He also observed that the Veteran was seen for low back pain in March 1996 after lifting a bag of cement. The examiner found that there was no evidence to link a chronic lumbar spine history from active duty to the Veteran's current age-related disease process of the lumbar spine. Therefore, he opined that the Veteran's lumbar spine disorder was not caused by or a result of active duty. However, the March 2014 VA examiner did not address the reported motor vehicle accident in service. In a November 2020 medical opinion, a VA examiner stated that the Veteran's back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He noted that there was no evidence of a chronic back condition in service, that a periodic examination 1983 was negative, and that there was no evidence of back disorder until many years after service. The examiner acknowledged the Veteran's report of a motor vehicle accident in 1974 with back complaints in service, but he also noted that the Veteran had a lifting injury in the 1990s. In addition, he explained that degenerative spine disease is considered a natural aging process, including natural desiccation of the discs, and that degenerative spine disease was age-appropriate at the time of the diagnosis made in this case based on a bone scan in 2007. He stated that more than 50 percent of men over the age of 50 will have evidence of degenerative spine disease with the prevalence rising significantly each decade thereafter. The examiner stated that, even if there was an accident in 1974, the Veteran served an additional 14 years without evidence of any back complaints. He found it unlikely that a significant event could have gone 14 years without manifesting. Therefore, the examiner concluded that is less likely than not that the Veteran's degenerative spine disease had its onset in service or is due to events in service, including a motor vehicle accident. He stated that the medical evidence and natural pathophysiology of degenerative spine disease does not support a finding of an onset in service or continuity since that time. There is no medical opinion otherwise relating the Veteran's current back disorder to his military service. The Board acknowledges the Veteran's lay statements that his current back disorder is related his military service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the diagnosis and etiology of a back disorder, 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) (lay persons not competent to diagnose cancer). The questions of diagnosis and etiology in this case go beyond a simple and immediately observable cause-and-effect relationship, particularly considering the delayed onset of the disorder, the post-service injuries, and the aging process. Moreover, even assuming the lay assertions regarding etiology are competent, the Board nevertheless finds the November 2020 VA medical opinion to be more probative, as it was based on a review of the record and the examiner's own medical expertise, training, and knowledge. The examiner supported his conclusions with thorough rationale and considered the Veteran's medical history, including his own statements. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a back disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a back disorder is not warranted. REASONS FOR REMAND The Veteran was afforded a VA examination in January 2020 in connection with his claim for service connection for peripheral neuropathy. The examiner noted that he had not been diagnosed with diabetic neuropathy. He indicated that distal symmetric sensorimotor polyneuropathy is the most common type of diabetic neuropathy, which is characterized by a progressive loss of distal sensation correlating with loss of sensory axons, followed, in severe cases, by motor weakness and motor axonal loss. The examiner noted that classic "stocking-glove" sensory loss is typical in the disorder and that the duration and severity of hyperglycemia are major risk factors for the development of diabetic neuropathy in patients with type 1 or type 2 diabetes. He also stated that glycosylation of plasma and tissue proteins leading to the formation of advanced glycosylation end products plays an important role in diabetic microvascular complications. However, the examiner found that there is no objective clinical evidence to support the diagnosis of bilateral upper or lower extremity peripheral neuropathy in this case. He noted that the Veteran has never been seen for this complaint, evaluated, or given an official diagnosis. He further stated that the current physical examination findings are also not consistent with the findings of either upper or lower extremity peripheral neuropathy. A November 2020 VA examiner also found that there was no diagnosis of peripheral neuropathy of the bilateral upper and lower extremities. He indicated that an objective examination was normal and that the Veteran only had subjective symptoms. Nevertheless, it is unclear as to whether the Veteran may have a neurological disorder other than peripheral neuropathy to which his reported symptoms are attributable. In this regard, it was noted that he had back pain radiating to both of his legs in March 1996 and upper back peripheral neuropathy for six months in July 2004. In June 2009, the Veteran was also documented as having a long history of back pain radiates down his right leg at times. During the January 2020 VA examination, he reported having a burning and tingling sensation in his fingers with intermittent pain and a burning sensation in his lower extremities, as well as an intermittent pins and needles sensation. During the November 2020 VA examination, the Veteran reported having numbness, paresthesia, and pain in his hands, legs, and feet. The Board also notes that symptoms alone without a specific diagnosis or identifiable disease, may cause a functional impairment and therefore qualify as a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1362 (Fed. Cir. 2018); see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020) (the Court held that the Federal Circuit's decision in Saunders is not limited to pain). For these reasons, the Board finds that an additional VA examination and medical opinion are needed to determine the nature and etiology of any neurological disorder that may be present and to determine whether the Veteran has any functional impairment. The matters are REMANDED for the following action: 1. The AOJ should request the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for a neurological disorder in his upper and lower extremities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any neurological disorder in his upper and lower extremities that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify any peripheral neuropathy or other neurological disorder involving his upper and lower extremities that has been present during the appeal period or within close proximity thereto. If the Veteran does not have a current diagnosis associated with his symptoms, the examiner should state this with a fully reasoned explanation. If the Veteran does not have a diagnosis to account for his reported symptoms, the examiner should state whether there is any functional impairment caused by neurological symptoms. Evidence of symptoms alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. For each diagnosis identified or any functional impairment resulting from neurological symptoms, the examiner should opine as to whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's military service, to include herbicide exposure therein (notwithstanding the fact that such an association is not presumed). He or she should also opine as to whether it is at least as likely as not that any current disorder or functional impairment is either caused by or aggravated by the Veteran's service-connected diabetes mellitus (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.