Citation Nr: 21068282 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-12 095 DATE: November 9, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a right-hand disability is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability was not manifest in service, was not manifest within one year of separation and is not related to service. 2. The Veteran's right-hand disability is not related to service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. A lumbar spine disability was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. Service connection for a right-hand disability, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C. §§ 1110, 1131 (2012)38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1983 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In June 2020 the Board remanded these issues and the issue of entitlement to service connection for sleep apnea for additional development. In a June 2021 rating decision, the RO granted service connection for obstructive sleep apnea. As a result, this issue is no longer before the Board. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lumbar Spine Multiple service treatment records note that the Veteran presented with low back pain that in November 1988 required 4 days of bedrest. The Veteran underwent a VA examination in November 2015. The examiner opined that it was less likely than not that the Veteran's current lumbar spine disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that while the Veteran did have some back pain in service, those injuries were a sprain or strain and muscle spasm type of injuries which do not cause a chronic condition. A November 2015 VA treatment report stated that the Veteran was to be started on an intensive physical therapy regiment with an emphasis on stretching for treatment of his back disability. Per the June 2020 Board remand instructions, the Veteran underwent a VA examination in April 2021. The examiner noted that the Veteran had degenerative disc disease and degenerative arthritis which was diagnosed in October 2015. The Veteran reported that this condition began in the 1980's while working in the Air Force lifting patients in the emergency room. The examiner opined that it was less likely than not that the Veteran's current lumbar spine disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that the condition that occurred in the military was not connected to the Veteran's current lumbar spine disability. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a lumbar spine disability is not warranted. As there is a current diagnosis of degenerative disc disease of the lumbar spine, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such disease is shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this instance however, service connection for a lumbar spine disability on a presumptive basis is not warranted as the record does not show evidence of arthritis of the lumbar spine during the Veteran's period of active military service, or within one year of his separation from active duty. Notably, the first evidence of arthritis of the lumbar spine was in October 2015. Accordingly, service connection for a lumbar spine disability on a presumptive basis is not warranted as a chronic disease did not manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. To the extent that the Veteran asserted that he experienced lumbar spine pain and continuing symptoms thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Notably, the April 2021 VA examiner specifically addressed the report of continuity of symptomatology and noted the Veteran's lay statements. The examiner noted that while the Veteran reported having a back injury in service, there was no connection between these reports of an injury and the Veteran's current lumbar spine disability. As a result, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Accordingly, service connection for a lumbar spine disability on a presumptive basis is not warranted as the Veteran's arthritis did not manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. Regarding service connection on a direct basis, the Board finds that the evidence is against a finding that the Veteran's lumbar spine disability is etiologically related to his service. Notably, the Veteran's service treatment records demonstrate that the Veteran presented with low back pain that in November 1988 required 4 days of bedrest. Despite these complaints and treatment, the service treatment records, however, were negative for any or diagnoses of any chronic lumbar spine disability. Furthermore, the only medical opinions addressing the etiology of the lumbar spine disability weigh against the claims. As noted above, the VA examiner in April 2021, while specifically noting the Veteran's in-service low back complaints, indicated that it was less likely than not that the Veteran's lumbar spine disability was incurred in or caused by the claimed in-service event, injury or illness. The Board affords the VA examiner's April 2021 opinion, which is supported by a rationale and medical knowledge, great probative value. In forming his opinion, the VA examiner specifically discussed the in-service treatment for the Veteran's lumbar spine disability and noted the Veteran's lay assertions regarding his lumbar spine disability. None of the competent medical evidence of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Thus, the Board finds the examiner's April 2021 opinions to be persuasive. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a lumbar spine disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). Right Hand The Veteran's service treatment records demonstrate that the Veteran was seen on multiple occasions in service for right hand pain. Notably, an August 1987 service treatment record reported that the Veteran had blunt right-hand trauma 7 months ago which resulted in a provisional diagnosis of neuropathy of the right wrist/arm. The Veteran testified at his Board hearing that he continued to have right hand pain. Per the June 2020 Board remand instructions, the Veteran underwent a VA examination in April 2021. The examiner provided a diagnosis of bilateral carpal tunnel syndrome. The Veteran reported that he began to experience right hand pain and numbness while he was working in the emergency room while in the Air Force. The examiner opined that it was less likely than not that the Veteran's current bilateral carpal tunnel syndrome was incurred in or caused by the claimed in service event, injury or illness. The examiner noted that while there was an event that happened in the military service of right-hand pain and numbness, this had resolved. The examiner found that there was no connection between the in-service event and the Veteran's current condition as the in-service event had resolved before discharge. The examiner also opined that it was at least as likely as not that the Veteran's bilateral carpal tunnel syndrome was proximately due to or the result of the Veteran's service-connected right ankle disability. The examiner noted that the Veteran's bilateral carpal tunnel syndrome disability did not occur in service but developed as a progression of weight gain due to his service-connected right ankle disability. In a May 2021 addendum opinion, the April 2021 VA examiner again noted that the Veteran had a current diagnosis of bilateral carpal tunnel syndrome and that while there was an event that happened in the military service of right-hand pain and numbness, this had resolved. The examiner found that there was no connection between the in-service event and the Veteran's current condition as the in-service event had resolved before discharge. In a June 2021 addendum opinion, the VA examiner opined that the Veteran's bilateral carpal tunnel syndrome was due to or proximately related to the Veteran's service-connected right ankle disability. The examiner noted that the November 2015 VA examination was negative for wrist complaints due to an ankle condition and at the Veteran's hearing he did not indicate that his current wrist disability was the result of his service-connected right ankle disability. The examiner also noted that there was no anatomical correlation between the Veteran's localized wrist condition and his service-connected right ankle disability. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a right-hand disability is not warranted. As there is a current diagnosis of right-hand carpal tunnel syndrome, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Notably, while the Veteran's service treatment records demonstrate that the Veteran was seen on multiple occasions in service for right hand pain, the Board notes that the Veteran's service treatment records are negative for complaints or treatments for a chronic right-hand disability. Additionally, the only medical opinion addressing the etiology of the right-hand disability weighs against the claim as the April 2021 VA examiner indicated that it was less likely than not that the Veteran's right-hand disability was related to service. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a right-hand disability is not warranted on a direct basis. Regarding service connection on a secondary basis, as noted above, in an April 2021 opinion, the VA examiner opined that it was at least as likely as not that the Veteran's bilateral carpal tunnel syndrome was proximately due to or the result of the Veteran's service-connected right ankle disability. The examiner noted that the Veteran's bilateral carpal tunnel syndrome disability did not occur in service but developed as a progression of weight gain due to his service-connected right ankle disability. However, in a June 2021 addendum opinion, the same April 2021 VA examiner opined that the Veteran's bilateral carpal tunnel syndrome was not due to or proximately related to the Veteran's service-connected right ankle disability. The examiner noted that a November 2015 VA examination was negative for wrist complaints due to an ankle condition and at the Veteran's hearing he did not indicate that his current wrist disability was the result of his service-connected right ankle disability. The examiner also noted that there was no anatomical correlation between the Veteran's localized wrist condition and his service-connected right ankle disability. As a result, the Board finds that the weight of the evidence is against a finding that the Veteran's current right-hand disability is etiologically related to the Veteran's service-connected right ankle disability or by any other service-connected disability. As noted above, while the April 2021 VA examiner opined that it was at least as likely as not that the Veteran's bilateral carpal tunnel syndrome was proximately due to or the result of the Veteran's service-connected right ankle disability, this opinion appeared to be made in error as the same April 2021 VA examiner clarified her comments in a June 2021 addendum opinion that specifically noted that the Veteran's bilateral carpal tunnel syndrome was not due to or proximately related to the Veteran's service-connected right ankle disability. The examiner specifically noted that the Veteran did not indicate that his current wrist disability was the result of his service-connected right ankle disability and also noted that there was no anatomical correlation between the Veteran's localized wrist condition and his service-connected right ankle disability. As a result, the Board finds that the medical evidence demonstrates that the Veteran's current right-hand disability is not related to his service-connected right ankle disability and the Veteran has not contended that a secondary relationship existed. None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a right-hand disability is not warranted on a direct or secondary basis. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right-hand disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). All Disabilities The Board notes the Veteran's contentions regarding the etiology of his claimed lumbar spine and right-hand disabilities. To the extent that the Veteran himself contends that a medical relationship exists between his claimed lumbar spine and right-hand disabilities and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that lumbar spine and right hand disabilities are not disabilities subject to lay diagnosis as these diagnoses require medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed lumbar spine and right-hand disabilities etiologies. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiners provided detailed rationale in support of their opinions and cited to the relevant evidence. For this reason, the VA examiners' opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for lumbar spine and right-hand disabilities. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.