Citation Nr: 21069474 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-67 540 DATE: November 18, 2021 ORDER Entitlement to service connection for a claimed disability of the lumbar spine is denied. REMANDED Entitlement to service connection for a claimed disability of the right elbow is remanded. Entitlement to service connection for a claimed disability of the left elbow is remanded. Entitlement to service connection for a claimed disability of the right knee is remanded. Entitlement to service connection for a claimed disability of the left knee is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a disability of the lumbar spine began during active service or is otherwise related to an in-service injury, disease, or event. 2. The preponderance of the evidence favors the conclusion that the Veteran's lumbar spine symptoms are attributable to a known clinical diagnosis. CONCLUSION OF LAW The criteria for service connection for a claimed disability of the lumbar spine have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 2007 to May 2012. This case comes to the Board from a May 2015 decision of the Agency of Original Jurisdiction (AOJ), which denied service-connected compensation for claimed disabilities of the knees, elbows, and lumbar spine. The Veteran timely appealed those rulings. In August 2020, he testified before the undersigned at a virtual hearing. A transcript of that hearing is of record. In April 2021, the Board remanded these issues for further development. Service Connection for a Lumbar Spine Disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, a successful claim for service connection requires competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). There is evidence that, during his naval service, the Veteran was aboard a ship which entered the Persian Gulf, which means that he is a "Persian Gulf veteran" for the purposes of 38 C.F.R. § 3.317. Compensation may be paid to a Persian Gulf veteran who exhibits "objective indications of a qualifying chronic disability" that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more before December 31, 2026, following such service, and such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 Factual Background Shortly before he enlisted in the Navy, the Veteran received a medical examination. The examiner's report indicates that, as of November 2006, his spine was normal. Subsequent service treatment records include periodic health assessment forms, dated August 2008, August 2009, July 2010, and July 2011. The first, third, and fourth of these forms included a question asking for the Veteran to assess, on a scale of zero to 10, the severity of any subjective feelings of pain he might perceive. On all three forms which included this scale, the Veteran indicated zero i.e., that he was not experiencing any pain. Although the August 2009 form did not include a pain scale, it included a question asking whether the Veteran was experiencing any other "significant issues" with respect to his health. Next to this question, the completed August 2009 form indicates that the Veteran was not experiencing any significant health problems. According to a May 2008 progress note, the Veteran complained of pain in his right foot after hitting that foot on a large rock at a water park. This appears to be the only injury mentioned in the service treatment records. The May 2008 note does not mention the back or spine. As the Veteran has correctly noted in his written statements, his service treatment records do not include the usual medical examination report at the time of his separation from active duty. But he did complete a health assessment form and a report of medical history form in January 2012. The assessment form indicates that the purpose of the assessment is "separation" and that, when compared with his last medical assessment or physical examination, the Veteran's health was the same. The answer to question 13 of the assessment indicates that the Veteran had not suffered from any injury or illness while on active duty for which he did not seek medical care. On the report of medical history form, the Veteran marked "no" to indicate that he was not experiencing, and indeed that he had never experienced, recurrent back pain or any back problem. According to post-service VA medical treatment records, the Veteran reported joint pains in the back, knee, knuckles, and elbows in April 2015. At that time, he told his primary care physician that, during his "second deployment around 2009, he started having pain with weight lifting." The Veteran attributes his current disabilities, including his claimed disability manifested by lower back pain, to repetitive lifting and carrying of heavy objects during his service aboard an aircraft carrier. In his hearing testimony, he explained that his duties aboard the ship included working in the laundry and stocking supplies at the ship's store. According to the Veteran, he would frequently spend many consecutive hours hauling heavy laundry bags, packages of food, and other supplies up and down the steps and ladder wells between the decks of the ship. The available service records confirm his assignment to the aircraft carrier U.S.S. Abraham Lincoln (CVN-72) and his work in the laundry and the ship's store. In his substantive appeal (VA Form 9), the Veteran criticized the unfavorable AOJ decision for "equating my pre-flight screening as a separation physical. This pre-flight physical was given to me with about 60 other papers to fill out before leaving the ship. I never received a separation physical so never got that last opportunity to clearly articulate for my medical records the pains I was feeling." In October 2017, the AOJ arranged a VA examination. The report of the examining physician identified a diagnosis of lumbosacral strain. In the examiner's opinion, it was less likely than not that this lumbosacral strain was related to service. As the Board explained in its April 2021 remand, this unfavorable opinion was inadequate to support a decision denying the claim because, to support his conclusion, the examiner relied entirely on the absence of reports of back pain or back injury in the service treatment records without considering the Veteran's contention about the potential effects of repetitive lifting. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Because of this weakness in the October 2017 report, the Board remanded the case for a new opinion to address the Veteran's suggestion that repetitive lifting in service caused his back disability. Because there was evidence that the Veteran's ship entered the Persian Gulf when he was part of its crew, the AOJ was also instructed to obtain a report indicating whether each claimed disability, including the Veteran's back disability, was attributable to a specific clinical diagnosis. If no specific clinical diagnosis explained the Veteran's claimed back symptoms, the post-remand examiner was instructed to prepare an opinion to indicate whether those symptoms reflected an undiagnosed illness or medically unexplained chronic multi-symptom illness pursuant to 38 C.F.R. § 3.317. The AOJ obtained a report from the post-remand examiner in July 2021. The examiner indicated a diagnosis of lumbosacral strain, resulting in pain and reduced forward flexion. According to the report's medical history section, the Veteran told the examiner that his initial symptoms began in 2008 and consisted of low back pain, spasms, and reduced range of motion. The Veteran's current treatment included over-the-counter non-steroidal anti-inflammatory drugs. In the examiner's opinion, it was less likely than not that the Veteran's lumbosacral strain was related to service. To explain this conclusion, the examiner noted the Veteran's complaints of pain and acknowledged that "microtrauma" over time can, in some cases, cause back disabilities. According to the examiner, however, it was unlikely that this Veteran's lumbosacral strain was caused by his repetitive lifting in service, partly because the service treatment records did not mention back pain but also because, according to the January 2012 medical history report, the Veteran indicated "no" to signify that he had not experienced back pain in the past. Based on the July 2021 opinion, the AOJ issued a Supplemental Statement of the Case (SSOC), which continued to deny the claimed disabilities. In response, the Veteran submitted a letter criticizing the SSOC for its emphasis on the absence of continuous records of treatment for his claimed disabilities since service. In hs letter, the Veteran explained that, during the period shortly before his separation from service, his ship's deployment was extended, leading to the cancellation of his previously scheduled separation leave and the cancellation of a scheduled class intended to help his transition to civilian life. Because this class was cancelled, the Veteran wrote, he did not learn that he was eligible to receive care from the VA system until a few years after his discharge from active duty. The Veteran indicated that, "I maintained continuous treatment from a VA medical center once I found out I qualified for VA healthcare." Analysis The diagnosis of lumbosacral strain satisfies the "current disability" requirement of the claim. The Board further finds that the Veteran's statements and hearing testimony describing his lifting and carrying of heavy objects aboard his ship satisfies the in-service injury or event requirement. The success of the claim therefore depends on whether it is at least as likely as not that the post-service diagnosis of lumbosacral strain is related to the in-service repetitive lifting described by the Veteran. See Fagan, 573 F.3d at 1287. Before addressing that issue, the Board will explain why 38 C.F.R. § 3.317 does not apply to the Veteran's claim for service connection for a disability manifested by low back pain. This conclusion is necessary because it is clear from the July 2021 examination questionnaire and opinion that the relevant symptoms are attributable to lumbosacral strain, a known clinical diagnosis. It might have been preferable for the examiner to have said this more explicitly in the opinion. But the rationale for the unfavorable opinion for the back disability does identify the diagnosis as lumbosacral strain. The same examiner prepared separate opinions with respect to the left knee and left elbow, based on examinations occurring on the same day as the back examination, and both opinions indicate that there was no "condition/pathology" in the relevant joint "to warrant a diagnosis" and that the "subjective complaints [were] not supported by objective findings during [compensation and pension] examination." Under these circumstances, it is reasonable to suppose that, if the examiner had made a similar conclusion with respect to the spine or low back, the July 2021 back opinion would include similar language. Thus, the Board finds that the Veteran is not eligible for presumptive service connection for his low back disability based on his Persian Gulf service. Accordingly, the decisive issue in the case remains whether it is at least as likely as not that in-service repetitive lifting and carrying objects is causally related to the Veteran's current lumbosacral strain. The Board finds that the most persuasive evidence as to whether the Veteran's lumbosacral strain is related to service is the opinion of the July 2021 examiner. Unlike the inadequate October 2017 opinion, the July 2021 report considered the Veteran's statements about repetitive lifting and did not exclusively rely on the absence of evidence back pain in the service treatment records. Although the examiner noted the absence of any in-service diagnosis or treatment for a back disability, the examiner did not rely solely on this circumstance to support the report's conclusion. This is clear because the examiner also emphasized the Veteran's responses to the January 2012 report of medical history form, particularly his indication that he was not experiencing recurrent back or any back problem and, moreover, that he had never previously experienced recurrent back pain or any back problem. This statement undermines the Veteran's statement to the examiner indicating that his back pain began in approximately 2008 and his April 2015 statement to his primary care physician, in which he said that he began to experience pain when lifting "around 2009" during his second deployment aboard U.S.S. Abraham Lincoln. If it were true that he first began experiencing back pain in 2008 or 2009, the Veteran would have marked "yes" to indicate a history of back pain when he prepared the January 2012 medical history report. The Veteran's August 2021 letter includes a reasonable explanation for his failure to seek treatment at a VA facility shortly after his discharge from active duty. Unfortunately, the letter does nothing to explain why, if the Veteran began experiencing back pain in 2008 or 2009, he would have given the responses he did when preparing the January 2012 medical history report. The Board has also considered the statement in the Veteran's Form 9, indicating that, because he did not participate in a medical examination at the time of his separation from the Navy, "[I] never got that last opportunity to clearly articulate for my medical records the pains I was feeling." This suggestion is unpersuasive. The January 2012 medical history report clearly gave the Veteran the opportunity to mark "yes" to indicate back pain if, indeed, he was experiencing back pain at the time or if he had previously suffered back pain during his service. It seems clear from the text and structure of the form that it would have taken just as much effort to mark "yes" to indicate a history of back pain as it did when the Veteran marked "no" to indicate that he had not experienced back pain. Prior inconsistent statements are generally considered to diminish credibility. See Fed. R. Evid. 613. While the Rules of Evidence are not binding in VA proceedings, they are persuasive authority in weighing credibility. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). When assessing credibility, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Southall-Norman v. McDonald, 28 Vet. App. 346, 355 (2016). Having considered his self-interest and its inconsistency with his prior statements, the Board finds that the Veteran's statements that he began to experience back pain in 2008 or 2009 are not credible. The appellant has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for benefits. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Because the preponderance of the evidence is against a finding that the Veteran's lumbosacral strain is related to service, the benefit of the doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim for service connection must be denied. REASONS FOR REMAND Although the Board regrets the need for further delay, the remaining issues in this appeal (service connection for current disabilities of the knees and elbows) must be remanded to obtain adequate medical opinions. Like the lower back claim, the Board remanded the knees and elbows claims to obtain new medical opinions addressing the Veteran's contentions and also to provide the information needed to decide whether he might be eligible for presumptive service connection based on his service in the Persian Gulf. For both elbows and both knees, the post-remand examiner was asked to assess the probability of a relationship between each diagnosed disability and the Veteran's in-service heavy lifting and carrying. If there was no diagnosable disability manifested by pain in one or both elbows or in one or both knees, the examiner was asked to detail any objective indications of chronic disability. For the right elbow and right knee, the examiner provided opinions indicating that it was less likely than not that the current disabilities diagnosed during the post-remand examinations were related to service. According to the examination questionnaire for the elbows, the diagnosis was right elbow strain. The knees questionnaire diagnosed right knee strain. As noted, for both the left elbow and the left knee, the examiner indicated that there was no "condition/pathology" in the relevant joints to warrant a diagnosis and, furthermore, none of the Veteran's subjective symptoms in the joint were supported by objective findings. Based on the Board's review of the record, it seems that the July 2021 examiner neglected to provide opinions addressing additional diagnoses for both elbows and both knees. The October 2017 knees examination report indicated patellofemoral pain syndrome affected both knees. It may be that the July 2021 examiner disagreed with this diagnosis, but the record also suggests the possibility that the examiner failed to notice the prior diagnosis of patellofemoral pain syndrome of the left knee. Such a mistake could explain the examiner's statement that there was no "condition/pathology" in the left knee to support a diagnosis. If the examiner had recognized the diagnosis of left knee patellofemoral pain syndrome, it is reasonable to suppose that this opinion, instead of indicating that there was no current disability of the left knee, would have addressed whether that diagnosis was related to service. The elbow opinions acknowledge a previous diagnosis of cubital tunnel syndrome affecting both elbows. But it appears that the examiner did not believe that preparing an opinion addressing this diagnosis was within the scope of the examination request. Cubital tunnel syndrome, the elbow examiner wrote, "is a peripheral nerve diagnosis and not an intrinsic elbow diagnosis . . ." But the Board must adopt a liberal interpretation of the Veteran's claim and, in this case, his claim is best understood as one seeking compensation for any disability affecting the elbows. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Because the examiner appears not to have provided appropriate opinions for each potentially relevant diagnosis, the Board must remand the claims concerning the elbows and knees to obtain adequate opinions. The matters are REMANDED for the following action: 1. Obtain and associate with the claims files copies of all records of the Veteran's VA treatment since November 2018. 2. Schedule the Veteran for a new VA examination for the purpose of assessing the nature and etiology of his claimed disabilities of the bilateral elbows. The complete claims file should be made available to the examiner, who should thoroughly review the file before he or she prepares the requested opinion. After the records review and the examination are complete, the examiner should prepare a report responding to the following requests: (a) Identify all diagnosable disabilities manifested by pain in the elbows, including but not limited to right elbow strain and bilateral cubital tunnel syndrome. (b) FOR EVERY DIAGNOSABLE DISABILITY MANIFESTED BY PAIN IN EITHER ELBOW, is it at least as likely as not (50 percent or greater probability) that the disability had its onset in service or is otherwise related to any in-service disease, injury or event, including the Veteran's work lifting and moving heavy loads of laundry and other supplies between the decks of an aircraft carrier? (c) If the Veteran does not have a diagnosable disability manifested by pain in one or both elbows, please detail the symptoms of which the Veteran complains (e.g. pain) and specifically note if there are objective indications of chronic disability (to include undiagnosed illness). If the Veteran does not have a diagnosable condition manifested by pain in either or both elbows, please indicate whether, based on a review of the record, the undiagnosed disability manifested to a degree of 10 percent or more prior to December 31, 2026. Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. The examiner should provide a complete rationale for all the requested opinions. In explaining his or her answer to part 2(a) of these instructions, the examiner should address the October 2017 diagnosis of bilateral cubital tunnel syndrome and the June 2021 diagnosis of right elbow strain. If the examiner disagrees with either diagnosis, he or she should clearly explain why. In explaining his or her response to part 2(b) of these instructions, the examiner should indicate whether it is plausible that the repetitive lifting and moving of heavy objects described by the Veteran in his hearing testimony could potentially explain his current elbow pain. THE EXAMINER IS ADVISED THAT THE VETERAN IS COMPETENT TO PROVIDE INFORMATION ABOUT SYMPTOMS HE HAS PERSONALLY EXPERIENCED AND THAT THE ABSENCE OF IN-SERVICE TREATMENT RECORDS CONCERNING THE CLAIMED DISABILITY IS NOT, BY ITSELF, SUFFICIENT TO SUPPORT AN UNFAVORABLE OPINION. 3. Schedule the Veteran for a new VA examination for the purpose of assessing the nature and etiology of his claimed disabilities of the bilateral knees. The complete claims file should be made available to the examiner, who should thoroughly review the file before he or she prepares the requested opinion. After the records review and the examination are complete, the examiner should prepare a report responding to the following requests: (a) Identify all diagnosable disabilities manifested by pain in the knees, including but not limited to right knee strain and bilateral patellofemoral pain syndrome. (b) FOR EVERY DIAGNOSABLE DISABILITY MANIFESTED BY PAIN IN EITHER KNEE, is it at least as likely as not (50 percent or greater probability) that the disability had its onset in service or is otherwise related to any in-service disease, injury or event, including the Veteran's work lifting and moving heavy loads of laundry and other supplies between the decks of an aircraft carrier? (c) If the Veteran does not have a diagnosable disability manifested by pain in one or both knees, please detail the symptoms of which the Veteran complains (e.g. pain) and specifically note if there are objective indications of chronic disability (to include undiagnosed illness). If the Veteran does not have a diagnosable condition manifested by pain in either or both knees, please indicate whether, based on a review of the record, the undiagnosed disability manifested to a degree of 10 percent or more prior to December 31, 2026. Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. The examiner should provide a complete rationale for all the requested opinions. In explaining his or her answer to part 3(a) of these instructions, the examiner should address the October 2017 diagnosis of bilateral patellofemoral pain syndrome and the June 2021 diagnosis of right knee strain. If the examiner disagrees with either diagnosis, he or she should clearly explain why. In explaining his or her response to part 3(b) of these instructions, the examiner should indicate whether it is plausible that the repetitive lifting and moving of heavy objects described by the Veteran in his hearing testimony could potentially explain his current knee pain. THE EXAMINER IS ADVISED THAT THE VETERAN IS COMPETENT TO PROVIDE INFORMATION ABOUT SYMPTOMS HE HAS PERSONALLY EXPERIENCED AND THAT THE ABSENCE OF IN-SERVICE TREATMENT RECORDS CONCERNING THE CLAIMED DISABILITY IS NOT, BY ITSELF, SUFFICIENT TO SUPPORT AN UNFAVORABLE OPINION. 4. The AOJ must ensure that the requested examination reports and opinions comply with these instructions. If any report is insufficient, the AOJ should return it to the examiner for any necessary corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.