Citation Nr: 21071022 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 19-24 313 DATE: November 29, 2021 ORDER Service connection for a back disability, to include as secondary to a service-connected duodenal ulcer, is denied. FINDING OF FACT A back disability was not shown as chronic in service and did not manifest to a compensable degree within an applicable presumptive period; continuity of symptomatology is not established, and the weight of the evidence is against a finding that the disability is otherwise attributable to an in-service injury or disease, or was caused or aggravated by the service-connected duodenal ulcer. CONCLUSION OF LAW The criteria for an award of service connection for a back disability, to include as secondary to service-connected duodenal ulcer, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant had service in the Army National Guard, to include a period of active duty for training from April 1960 to October 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In February 2021, the appellant testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In May 2021, the Board remanded the issue on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. See August 2021 supplemental statement of the case. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be 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, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection can be established for disability due to disease or injury incurred or aggravated in the line of duty during a period of active duty for training (ACDUTRA). 38 U.S.C. §§ 101(2), (22), (24), 1110; 38 C.F.R. §§ 3.1(d), 3.6(a), (c), 3.303; Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). "Active duty for training" is defined, in part, as full-time duty in the Armed Forces performed by Reserves for training purposes, or full-time duty performed by members of the National Guard of any State under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Service connection can also be established for disability due to injury, but not disease, incurred or aggravated in the line of duty during a period of inactive duty training (INACDUTRA), or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C. § 101(2), (23), (24); 38 C.F.R. §§ 3.1(d), 3.6(a), (d). The term "inactive duty training" is defined as duty (other than full-time duty) performed by a member of the National Guard of any State under 38 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d)(4). If a veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the veteran's present condition (e.g., whether the veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a back disability is denied. The appellant seeks to establish service connection for a back disability. He asserts that his back disability began in service after he developed a duodenal ulcer. Alternatively, he asserts that his back disability is secondary to his service-connected duodenal ulcer. Specifically, he asserts that due to his duodenal ulcer, he lost abdominal strength, which caused him back pain. See, e.g., February 2021 Board hearing transcript. The question for the Board is whether the appellant has a current back disability that began during service, is at least as likely as not related to an in-service injury or disease, or is secondary to his service-connected duodenal ulcer. Following review of the record, it is the Board's conclusion that while the appellant has a diagnosis of degenerative arthritis of the spine, the preponderance of the evidence is against a finding that the disability began during active service, is otherwise related to an in-service injury or disease, or has been caused or aggravated by the service-connected duodenal ulcer. The appellant's service treatment records are devoid of any evidence of complaints of, treatment for, or diagnosis of a back disability. An April 1964 retention examination report shows a normal clinical evaluation of the spine. While not dispositive, the post-service evidence does not reflect documented complaints or treatment related to a back disability until January 2002, decades following the appellant's separation from service. The multi-year gap between discharge from service and when he sought medical care for his back is a factor that weighs against a finding of in-service onset. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A July 2021 VA examiner opined that the appellant's back disability was less likely than not incurred in or caused by military service. The examiner reasoned that the March 1960 military entrance examination report and the available service treatment records made no reference to back symptoms, conditions, or diagnoses. As such, the examiner concluded that it was difficult to associate the current back diagnosis with military service based on the evidence of record. The July 2021 VA examiner also opined that it was less likely than not that the current back disability was proximately due or aggravated by the service-connected duodenal ulcer. The examiner noted that the appellant was diagnosed with degenerative arthritis of the spine and was service connected for a duodenal ulcer. The examiner explained that a duodenal ulcer is an ulcer that occurs in the lining in the part of the small intestine just beyond the stomach (the duodenum). The examiner further explained that an ulcer of the lining of a portion of the intestine would not have an anatomic or physiologic association with the spine or the muscles of the abdomen that would define core strength. The examiner reasoned that, based on anatomic and physiologic knowledge, a duodenal ulcer would not have an adverse effect on the spine, nor would a duodenal ulcer impair abdominal muscle strength since the erosive ulcer is confined to the lining of the intestine. The examiner noted that the duodenum does not share a functional or anatomic relationship with either the spine or the abdominal musculature. The examiner further noted that a review of the medical literature did not reference causality (a "cause and effect" association) between duodenal ulcers and the development of spine (back) conditions or abdominal (core) musculature conditions. As to the further relationship between diverticulitis, for which the appellant underwent surgery in July 1998, and the service-connected duodenal ulcer, the examiner found such a relationship unlikely. The examiner explained that a duodenal ulcer is an erosion that occurs in the lining in the part of the small intestine just beyond the stomach (the duodenum), that diverticulitis is the infection or inflammation of large intestine diverticula, and that the two conditions are not anatomically or physiologically associated, that the medical literature did not reference a cause and effect association between duodenal ulcers and the development of diverticulitis, and that the conditions have no relationship to one another. Based on anatomic/physiological principles, as well as review of the medical literature, the examiner concluded that it was difficult to associate the diverticulitis with the service-connected duodenum condition; and that it was less likely than not that the diverticulitis was proximately due to, the result of, or aggravated by the duodenal ulcer. In this latter regard, the Board notes that in a prior October 2002 statement, a private physician, Dr. S.S., broadly indicated that the appellant's intermittent gastrointestinal problems, characterized to include peptic ulcer disease, gastroesophageal reflux disease, dyspepsia, diverticulitis, colon polyps, and irregular bowels, dated back to 1962 and should be service connected. However, Dr. S. provided no substantive rationale with respect to how separately diagnosed disabilities apart from the duodenal ulcer, to include diverticulitis, could be attributed to service. Accordingly, the Board affords the opinion very little probative weight. By contrast, the July 2021 VA examiner's opinion is based on an accurate understanding of the facts and articulates reasons for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Because of that, the opinion highly probative. See also February 2004 VA medical opinion ("Though the patient has had diverticulitis . . . there appears to not be a relationship between the peptic ulcer disease that he had while on active duty and the diverticulitis and subsequent removal of colon that occurred some 20 years later. As such, I cannot find evidence that this is a service related condition."). In support of his claim, and after the July 2021 opinion was obtained, the appellant submitted a 1998 medical article in August 2021. The article details a case study involving a 54-year-old individual who was found to have back pain apparently related to a duodenal ulcer. Summarized briefly, the article details that the individual in question, who had no significant medical history, presented with a complaint of mid to low back pain; that he was diagnosed with joint dysfunction; that three weeks later he was admitted to the hospital with a diagnosis of upper gastrointestinal bleed; that he was found to have a large duodenal ulcer; that he underwent vagotomy and pyloroplasty; that he returned to his physiatrist three weeks after hospital discharge with minimal back pain; and that the cause of his back pain proved to be referred visceral pain from the duodenal ulcer. Following review, the Board finds that the article fails to demonstrate with any degree of certainty a relationship between the appellant's back disability and his service-connected duodenal ulcer. Although the article details an individual case where back pain was referred from a duodenal ulcer, the article appears to include that scenario among other "uncommon causes" of low back pain, suggesting that a duodenal ulcer is unlikely to be the cause of low back pain in any individual case. In addition, the article does not speak to the facts of the appellant's particular case. By contrast, the July 2021 opinion focused on the appellant's case, to include his specific diagnosis (degenerative arthritis of the spine) and provided a thorough rationale as to why it was unlikely in this particular case that the appellant's low back disability was proximately due or aggravated by the service-connected duodenal ulcer. For that reason, the Board finds the July 2021 opinion more probative. The Board has also considered an August 2021 statement from a private physician, Dr. E.R., who noted that the appellant had a long history of chronic stomach problem which was related to his back pain and treatment, as well as his repeated surgical interventions. Dr. R. noted that medical literature supported "that 67 percent of back pain is stemming from the appellant's extensive surgical interventions from his stomach." To the extent Dr. E.R. purports to provide an opinion that the appellant's back disability is secondary to the service-connected duodenal ulcer, the Board finds that his opinion is of very little probative value. The opinion was not offered in terms of probability and, although accompanied by the foregoing medical article, was not supported by any independent rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion that is unsupported by a coherent rationale is of no probative value). Moreover, the opinion appears to be internally inconsistent. Specifically, the first part of the opinion appears to indicate that the appellant's stomach problems are related (i.e., secondary) to back pain, while the second part of the statement appears to indicate that back pain is related (i.e., secondary) to his stomach problems. In addition, while Dr. E.R. noted that "67 percent of back pain is stemming from the appellant's extensive surgical interventions from his stomach," the examiner did not explain how the appellant's past surgical interventions were related to his duodenal ulcer (as opposed to his non-service-connected gastrointestinal disabilities, to include diverticulitis) and did not otherwise provide reasons as to how the appellant's back pain, which has been attributed to a musculoskeletal back disability of degenerative arthritis of the lumbar spine, may be related to the duodenal ulcer given the particulars of this specific case. For those reasons, the Board gives very little probative weight to Dr. R.'s opinion. The Board has also considered the appellant's statements in this regard. However, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to the etiology of his current back disability. In any event, the Board gives more probative weight to the July 2021 VA medical opinion. Finally, the Board notes that the appellant's arthritis of the spine is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, even assuming that the provisions pertaining to chronic disabilities are applicable in this case, the disability at issue was not shown as chronic in service, is not shown to have manifested to a compensable degree within an applicable presumptive period, and was not noted in service with attributable continuity of symptomatology. As such, service connection on a direct and presumptive basis is not warranted. In view of the foregoing, the Board must find that the preponderance of the evidence is against the appellant's claim. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.