Citation Nr: 21066260 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 19-23 843 DATE: October 29, 2021 ORDER Service connection for a thoracolumbar spine disorder (hereinafter "back condition") is denied. REMANDED Service connection for a heart condition (claimed as ischemic heart disease) is remanded. FINDING OF FACT The Veteran's current back condition was not chronic during service, did not manifest to a compensable degree within the applicable presumptive period, did not exhibit continuity of symptomatology since service, and is not otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to April 1969. This matter comes before Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a January 2021 Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The Board remanded this matter in March 2021 for private and VA treatment records, a VA examination, and an addendum medical opinion. The Board finds that the remand directives were substantially complied with, as the authorized private treatment records and outstanding VA treatment records were associated with the claims file and an adequate VA examination and addendum opinion were obtained; therefore, further remand is unnecessary as to the back condition claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further remand is necessary, however, as to the heart condition claim, as discussed in more detail in the remand section below. 1. Service connection for a back condition is denied. The Veteran seeks service connection for his back condition, diagnosed as degenerative arthritis. He contends his current back condition is related to a motor vehicle accident that he was involved in during service. See January 2021 Hearing Transcript. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). While the Veteran's service treatment records document treatment following a December 1966 motor vehicle accident, these records do not reflect that the Veteran suffered a back injury or was diagnosed with a back condition in-service. Instead, per a December 1966 Emergency Sick Call Note from after the accident, the Veteran suffered abrasions, lacerations, and an arm/wrist injury, and although tenderness to the left sacroiliac joint was documented, his provider noted that he had no other spinal skeletal tenderness. No back injury was noted. Upon his separation from active service the Veteran denied a history of recurrent back pain or arthritis, his separation examination revealed no spine or other musculoskeletal abnormalities, and his separation examiner noted that he denied all significant medical or surgical history. See January 1969 Report of Medical History; January 1969 Report of Medical Examination. Immediately following his discharge from service, he filed a single claim of service connection for fractured right wrist and referenced the December 1966 motor vehicle accident, but did not file a claim for a back injury or condition. See April 1969 Veterans Application for Compensation or Pension. Soon thereafter, at a June 1969 VA examination, he did not report any back-related injuries or symptoms, and the examiner only addressed his history of a right wrist injury. The Veteran specifically contends that he experienced back pain both during and after service, but did not seek treatment as he did not want surgery, instead self-medicating and self-treating his back condition from 1966 to 2017. See April 2018 Statement in Support of Claim. However, at his January 1969 separation examination, he denied ever treating himself for illnesses other than minor colds. The Board recognizes that the Veteran is competent to report the onset and ongoing existence of his back pain as those observations come to him through his senses; however, he is not competent to provide a diagnosis or determine that his reported back pain was a manifestation of his later diagnosed back condition. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). The Board finds the contemporaneous medical evidence demonstrating lack of in-service treatment for a back condition and lack of in-service complaints of back pain more probative than the Veteran's reports. Curry v. Brown, 7 Vet. App. 59 (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). As such, the Board finds that the Veteran's back condition was neither diagnosed nor incurred during service. Where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran's claimed back condition includes arthritis which is one of the chronic diseases listed under 38 C.F.R. § 3.309(a); therefore, the Board has considered and applied the provisions of 38 C.F.R. § 3.303(b) pertaining to manifestation to a compensable degree within a year or continuity of symptomatology in analyzing the Veteran's claim. The Board finds that the evidence does not demonstrate continuity of symptomatology. The Veteran has reported that his back pain had been on and off since the accident, finally escalating to the point where he received injections at Kaiser Permanente and later underwent surgery. See January 2021 Hearing Transcript. He separately reported that he first sought care for his back condition in 2006 after experiencing more regular back pain in the early 2000s. See July 2021 VA Examination. VA treatment records indicate that the Veteran began complaining of chronic back pain to VA providers in February 2009, though his reports documented therein do not specify when it began. See, e.g., February 2009 Physical Therapy Consult. His VA treatment records prior to February 2009 include minimal reference to his back across various providers' general reviews of systems, though in May 2005 his VA provider noted "no spinal/CVAT" (costovertebral angle tenderness) related to his back. See May 2005 Primary Care Note. There are no private treatment records documenting reports of or treatment or the Veteran's condition starting in 2006 as reported. While the RO requested authorization to obtain treatment records from Kaiser Permanente from 2000 to present, in accordance with the Board's remand directives and the Veteran's testimony that he started treatment for his back condition with Kaiser Permanente in 2000, he only authorized release of his records from April 2018 to March 2021. As discussed in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), "[t]he duty to assist is not always a one-way street" and if the Veteran desires help with his claim, he must cooperate with VA's efforts to assist him. To the extent that the evidence of record is incomplete, that is a direct result of the Veteran's decision not to authorize release of his Kaiser Permanente records dating back to 2000. As previously mentioned, the Veteran reported that he has experienced back pain since service. He has testified that his back pain started after he was involved in the aforementioned December 1966 motor vehicle accident, noting that he would treat the pain with over-the-counter remedies as he had thought it was just aching pains, but the pain started getting worse to the point he had pinched nerves and needed surgery in 2016. See January 2021 Hearing Transcript. He separately testified that his doctors have not indicated, either verbally or in writing, that his back condition may be related to the in-service motor vehicle accident. Again, while the Board recognizes that the Veteran is competent to report having experienced symptoms of back pain during service and since service, he has not been shown to have the requisite medical knowledge or expertise to be deemed competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current back condition. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377. The competent medical evidence of record, which includes the Veteran's service treatment records, June 1969 VA examination, VA treatment records, and private treatment records, indicates that the Veteran did not report symptoms of a back condition until 2009. Based on the lack of a, documented or diagnosed back condition until 2009, at earliest, 40 years post-service, the evidence is against finding that the Veteran had a continuity of symptomatology of arthritis related to his current back condition since his active service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding that the Board may consider failure to report symptoms for many years). While the Veteran is competent to report symptoms, his lay statements as to continued back pain are not as probative as his medical records reflecting no complaints of or treatment for a back condition until multiple decades post-service. Although service connection is not warranted on a presumptive basis, the Board also looks to whether it may be granted on a direct basis; however, after review of the lay and medical evidence, the Board finds that direct service connection is also not warranted as there is no nexus between the Veteran's current back condition and any in-service event, to include the December 1966 motor vehicle accident. The Veteran was afforded a VA examination in July 2021 to address the nature and etiology of his back condition, and the examiner ultimately opined that his back condition is less likely than not related to his in-service motor vehicle accident. The examiner discussed the service treatment records documenting the accident and noted that there was no mention of back pain or tenderness, and while the treating physician ordered an x-ray for wrist pain and tenderness, they did not order any spine x-rays, and he was not kept for observation. The examiner reasoned that while any accident where the victim is ejected (as was the case here) is potentially serious, the examination that followed and the Veteran's clinical course indicated that it was not a serious accident and there is no evidence or reason for suspicion that his back was injured. The examiner further added that while medical literature indicates that serious injury can result in traumatic arthritis some decades later, the Veteran's motor vehicle accident injury was not of the sort in which traumatic arthritis is anticipated. The examiner also provided that arthritis has many other causes, including age, genetics, and obesity, and the Veteran was 55 years old and overweight when his pain began, and reported some improvement in his back pain with a recent 30-pound weight loss. The Board notes that the examiner's statement that the Veteran was 55 years old when his pain began is incorrect based on the Veteran's reports both in the claims file and as provided at the examination; however, because the examiner herself documented the Veteran's reports that he experienced back pain during service and more regularly in the early 2000s, the Board finds that she did not rely on an inaccurate factual premise in rendering her opinion. Rather, it appears that the examiner may have been referring to the Veteran's report that he experienced more regular back pain in the early 2000s in stating that the Veteran was 55 years old when his pain began. The Board finds the July 2021 VA examination and opinion highly probative. The examiner thoroughly reviewed the claims file, detailed the Veteran's in-service treatment following the December 1966 motor vehicle accident, and referenced both the nature of his in-service treatment and medical literature as to traumatic arthritis in opining that his current back condition is less likely than not related to service. Accordingly, the Board finds that service connection is not warranted, and the claim is denied. REASONS FOR REMAND 2. Service connection for a heart condition The Veteran seeks service connection for a heart condition, originally claimed as ischemic heart disease, due to his conceded exposure to herbicide agents from qualifying service in the Republic of Vietnam. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1). Significantly, ischemic heart disease is disease presumptively associated with exposure to herbicide agents, with the regulation providing that it includes, but is not limited to acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. 38 C.F.R. § 3.309(e). The Board notes that the Veteran is not diagnosed with any of the aforementioned heart conditions diseases related to ischemic heart disease and provided for in 3.309(e). The Veteran's private treatment records document a history of diastolic heart failure, hypertension, hyperlipidemia, atherosclerosis of the aorta, and thoracic aortic aneurysm, and include multiple notations that there has been no evidence of ischemia and no ischemic changes related to his heart condition. See April 2019 Correspondence from PA-C T.D.; March 2018 MIBI Note; March 2020 Stress Test Note; May 2020 EKG Note. Additionally, the Veteran submitted a private Disability Benefits Questionnaire (DBQ) addressing his heart condition in May 2017, with his private examiner marking that he did not have ischemic heart disease and noting that he was diagnosed with atherosclerosis of the aorta in June 2013. The Veteran was afforded a VA examination in July 2019 to assess the nature of his heart condition. The examiner included diagnoses of congestive heart failure and atherosclerosis and aneurysm of the ascending aorta. The examiner separately noted that the Veteran's cardiovascular conditions, which he described as aortic calcification with an aneurysm of the ascending aorta, long-standing hypertension, and coronary artery calcification, do not meet criteria for ischemic cardiac disease since the Veteran has never had symptoms of ischemia. As discussed in the Board's prior remand, congestive heart failure is well-recognized as ischemic heart disease, and so the May 2021 addendum opinion was obtained to address this discrepancy. The May 2021 examiner opined that, based on available medical evidence, there is insufficient objective finding to support a diagnosis of coronary artery disease or ischemic heart disease. The examiner reasoned that while the July 2019 examiner included a diagnosis of coronary artery disease, he clearly explained the reasons why the Veteran's coronary artery calcification did not represent ischemic heart disease, and, as such, coronary artery calcifications as found in a CAT scan, rather than coronary artery disease, would be a more accurate diagnosis. Accordingly, the record does not reflect a current diagnosis of ischemic heart disease or any explicitly related heart diseases or conditions as provided in 38 C.F.R. § 3.309(e). However, the Board stills considers whether direct service connection is warranted based on the Veteran's presumed herbicide exposure under the generally applicable standards for service connection. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (holding that VA must consider direct service connection where presumptive service connection is not warranted). While the Board sincerely regrets the additional delay, further remand is necessary to develop this claim and afford the Veteran due process of law, as discussed below. The Board notes that the while the Veteran has been afforded a VA examination detailing his heart condition, neither the July 2019 or May 2021 VA examiner provided an opinion as to the nature and etiology of this condition, particularly as related to his conceded herbicide agent exposure. Significantly, the July 2019 examiner commented that the Veteran's heart conditions were due to his long-standing hypertension, but did not address the nature and etiology of his hypertension and whether it is due to his active service, to include herbicide agent exposure. In this regard, the National Academy of Science (NAS) Institute of Medicine's Veterans and Agent Orange: Update 11 (2018) upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Accordingly, a VA medical opinion must be obtained as to the nature and etiology of all currently diagnosed cardiovascular conditions and to determine whether any identified disorder is due to his active service, to include conceded herbicide agent exposure. The matters are REMANDED for the following action: Forward the Veteran's file to the May 2021 VA examiner for an addendum opinion. After a complete review of the claims file, including this remand, the examiner should respond to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed cardiovascular condition(s) is/are related to service, to include as due to herbicide agent exposure? In providing these opinions, the examiner must consider and discuss the most recent study by NAS indicating that hypertension may be linked to herbicide agent exposure. Also, merely stating that the conditions are not presumptively associated with herbicide agent exposure is not a sufficient rationale for a negative opinion. Rather, the examiner should provide a rationale for any opinion consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.