Citation Nr: 21067821 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-27 237 DATE: November 5, 2021 ORDER Entitlement to service connection for a back disorder, to include as secondary to serviced-connected left varicocele, is denied. FINDING OF FACT None of the claimed back disorders, to include sacroiliac (SI) joint condition, lumbosacral strain, degenerative arthritis, degenerative joint disease (DJD), and degenerative disc disease (DDD), were present in service, manifested as arthritis to a compensable degree within one year after discharge from service, were shown to be causally related to service, or were shown to be proximately due to or aggravated by the Veteran's service-connected left varicocele. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disorder, to include as secondary to serviced-connected left varicocele, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision. In January 2020, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In April 2015, March 2020, and June 2021, the Board remanded this matter for additional development. Entitlement to service connection for a back disorder, to include as secondary to serviced-connected left varicocele In written statements of record and during his January 2020 Board hearing, the Veteran has asserted that his claimed back disorder was related to a lifting injury during service in April 1978. The Veteran indicated that he hurt his back lifting a heavy parking block, went to sick call, received medication, and then was discharged weeks later. He contended that his back has continued to bother him since service discharge. He has also asserted that his present back disorders were secondary to his service-connected left varicocele. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). For secondary service connection claims, the standard for aggravation is any increase in disability, not permanent worsening. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Aggravation refers to any incremental increase in disability, any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence. Id. Service treatment records do not show any complaints, findings, diagnosis, or treatment of any back disorder. The Veteran's spine was marked as normal on clinical evaluation in his October 1976 service entrance examination report. On a July 1978 claims form, the Veteran reported "bad back, April 1978, not treated". In a September 1978 VA examination report, the Veteran asserted that he injured his back in approximately April 1978 while lifting a heavy load during service. The examiner indicated that there was no deformity of the back with no tenderness on palpation or percussion and only slightly restricted flexion. The examiner then listed an impression of status post back injury by history with residual back pain. A September 1978 lumbosacral spine X-ray was normal. Thereafter, post-service VA treatment records dated in June and July 2006 showed complaints of back pain after putting up a ceiling fan. The Veteran was noted to have a history of four prior minor motor vehicle accidents associated with back pains with no fractures and only a little disc herniation on prior imaging. A treatment provider listed an impression of spinal arthritis and scoliosis with back pain. X-ray reports from June 2006 detailed findings of minimal scoliosis and mild degenerative changes. In May 2007, the Veteran underwent surgery for percutaneous thrombosis of varicocele. VA treatment records dated from 2009 to 2011 detailed complaints of chronic low back pain and scrotal pain radiating to abdomen/back/legs. The Veteran reported that he had low back pain with a history of four motor vehicle accidents and service-related back strain. In April 2009, the Veteran was noted to have back pain due to motor vehicle accidents as well as secondary to trauma from the distant past. After new onset groin pains, a September 2011 VA lumbar spine MRI report was obtained and revealed minimal bulging of the disc at L4-L5 and multilevel facet and ligamentum flavum hypertrophy, moderate-to-severe on the left at L5-S1. Private treatment notes dated from 2011 to 2013 detailed complaints of low back pain and normal lumbar spine findings. In a May 2011 VA examination report, the Veteran asserted that his back condition onset in 1977. The examiner diagnosed lumbago along with SI joint dysfunction and was unable to provide an opinion without resorting to speculation as to whether the Veteran's in-service lumbosacral strain was etiologically related to his current diagnosis. In the cited rationale, the examiner noted that the cause of SI joint dysfunction was uncertain and that it would be speculative to attribute the current symptoms to an episode of acute low back strain which occurred 30 years prior. The examiner further opined that SI joint dysfunction was not permanently aggravated by the Veteran's left varicocele. It was noted that medical literature did not support that left varicocele caused SI joint dysfunction. A May 2011 VA X-ray report revealed the lumbosacral spine was stable. In VA treatment records dated from 2012 to 2016, the Veteran was treated for chronic radicular low back pain associated with largely L4-L5 more than L5-S1 facet arthropathy and foraminal stenosis. An October 2015 VA X-ray report showed minimal degenerative changes of the lumbar spine. In a March 2016 VA examination report, the examiner listed diagnoses of lumbosacral strain and degenerative arthritis of the spine along with lumbago and SI joint dysfunction. In an April 2016 VA medical opinion, the examiner then opined that the Veteran's claimed back disorder was not at least as likely as not aggravated beyond its natural progression by his service-connected left varicocele. In the cited rationale, the examiner noted that medical literature did not support that the Veteran's back condition (chronic low back pain, SI joint dysfunction, and mild lumbosacral spine DJD) was caused by, the result of, or aggravated by left varicocele, status post embolization of left spermatic vein. Additional VA treatment records dated from 2017 to 2020 detailed continued complaints of chronic back pain and findings of mild DJD/DDD. There were findings of minimal degenerative changes of the lumbosacral spine on X-ray in 2017 and facet DJD throughout the lumbar spine on MRI in 2018. The Veteran also complained of moderate spasm in the right paralumbar musculature as well as tenderness to palpation midline over the thoracic and lumbar spine, bilateral paraspinals, and right SI joint in 2020. In an April 2020 VA examination report/medical opinion, the examiner diagnosed vertebral dislocation and marked that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. In the cited rationale, the examiner noted that the Veteran had no issues related to the claimed thoracic back pain prior to military service. It was indicated that the onset of the condition was during service and documented in the service treatment records. The examiner further noted that there was evidence of current, chronic, and continuous treatment and care. The examiner then concluded that a nexus had been established. The Board notes, however, that this conclusion was based on an inaccurate factual basis as the condition was not in fact documented in service records. In a September 2020 VA medical opinion, the examiner opined that the claimed back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He clearly refuted conclusions reached by the April 2020 VA examiner, recognizing that there was no notation of an active back condition at separation. He highlighted that the Veteran did not seek treatment for his diagnosed back conditions until many years after separation. It was noted that a September 2011 MRI diagnosed ligament flavum changes at L5-S1, which was probably consistent with the diagnosis of a SI condition as well as DDD/DJD. The examiner further indicated that there was no evidence of care proximate to service as noted, and that degenerative spine disease developed naturally due to desiccation of the discs over time with chronic wear and tear involving the facets. He detailed that greater than 50 percent of men over the age of 50 will develop degenerative spine disease, including DDD/DJD. It was noted that the SI condition did not involve the SI joint itself, but the ligamentous structures connecting the vertebral bodies and that the symptoms would have considerable overlap. He concluded that there was no evidence of that condition during service or prior to the evaluations in 2011. Therefore, the examiner opined that it was less likely than not that the Veteran's DDD, DJD, and SI symptoms had their origin in service or were due the April 1978 back pain reported by the Veteran in 1978. He reiterated that there were no physical findings of a back condition at separation. There was no objective medical evidence, other than the Veteran's reports, to support the origin of the Veteran's ligamentum flavum condition/SI dysfunction and degenerative spine disease while in service. He concluded it was unlikely a significant condition would have gone the additional six months of active duty without requiring evaluation from April to October 1978. In a July 2021 VA medical opinion, the examiner opined that the Veteran's back conditions (including SI joint condition, lumbosacral strain, degenerative arthritis, DJD, and DDD) were not caused by or aggravated by his left varicocele. The examiner specifically noted that his opinion was unequivocal. He highlighted that his review of medical treatise information showed there was no pathophysiologic or anatomic mechanism by which a varicocele could cause or aggravate the Veteran's lumbar conditions. Therefore, the examiner opined that it was less likely than not that the Veteran's currently diagnosed lumbar spine conditions were due to or incurred in service or were due to the Veteran's left varicocele. The examiner further opined that it was less likely than not that the Veteran's lumbar spine conditions were aggravated beyond their natural course due to any cause, including the left varicocele. The examiner again highlighted that his review of medical treatise information showed the Veteran's asserted theory was medically implausible. As an initial matter, evidence of record does not show any back disorder, to include SI joint condition, lumbosacral strain, degenerative arthritis, DJD, and DDD, was incurred during active military service or manifested as arthritis to a compensable degree within one year after the Veteran's discharge from service in July 1978. Service treatment records are void of any complaints, findings, diagnosis, or treatment of any back disorder. While the Veteran complained of "bad back, April 1978, not treated" on a July 1978 claims form, a September 1978 VA examination report showed complaints of back pain with no deformity, only slightly restricted flexion, no tenderness to palpation, and normal lumbosacral spine X-ray findings. Post-service private and VA treatment records first showed complaints of back pain and treatment for the present back disorders from 2006 to the present, decades after service separation. Significantly, the record also does not include any probative medical evidence or opinion suggesting a causal relationship between the Veteran's claimed back disorders and events during his active military service, to include the Veteran's asserted in-service lifting injury. Evidence of record also does not include any probative medical evidence or opinion suggesting a causal relationship between the Veteran's claimed back disorders and his service-connected left varicocele. The Veteran has also not identified or alluded to the existence of any such opinions. In fact, in the September 2020 and July 2021 VA examination reports/medical opinions, the examiners repeatedly addressed the Veteran's contentions that his claimed back disorder onset after/was causally related to the asserted in-service lifting injury or was secondary to his service-connected left varicocele. Based on the cumulative evidence of record, the Board considers the above September 2020 and July 2021 VA medical opinions to be of great probative value in this appeal. The VA examiners provided a complete rationale for the stated opinions, supporting the opinions by utilizing their medical knowledge as well as citing to a detailed review of evidence of record and medical treatises. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board further finds that the May 2011, April 2016, and April 2020 VA examination reports/medical opinions lack probative value, as those opinions were based on speculation, contained inadequate findings concerning secondary service connection based on aggravation (i.e., only discussing permanent worsening), or were predicated on inaccurate factual premises, respectively. See Jones v. Shinseki, 23 Vet. App. 382 (2010); Ward v. Wilkie, 31 Vet. App. 233, 239 (2019); see also Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Therefore, the Board finds that the most persuasive medical evidence that specifically addresses the questions of whether the Veteran's back disorders were incurred during service, were related to events during active service, or were secondary to his service-connected left varicocele weighs against the claim. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Thus, there is no basis upon which to conclude that the Veteran's present back disorders were incurred in or caused by active military service, specifically the asserted in-service back injury. 38 C.F.R. §§ 3.303, 3.307, 3.309. There is also no basis upon which to conclude that the Veteran's present back disorders were proximately due to or aggravated by his service-connected left varicocele. 38 C.F.R. § 3.310. Statements from the Veteran are competent evidence as to observable symptomatology, including pain. However, the statements that the Veteran had a back disorder as a result of an injury during active military service or as secondary to his service-connected left varicocele draw medical conclusions, which he is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran's claimed back disorder falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Moreover, the September 2020 and July 2021 VA examiners considered the lay assertions of record from the Veteran, to include the contentions of continuity of back symptomatology since an asserted in-service lifting injury, but nevertheless found that the current back disorders (including SI joint condition, lumbosacral strain, degenerative arthritis, DJD, and DDD) were not related to service or his service-connected left varicocele. Accordingly, the criteria to award entitlement to service connection for a back disorder on a direct or secondary basis have not been established, either through probative medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a back disorder, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.