Citation Nr: 21071318 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-01 056 DATE: November 30, 2021 ORDER Entitlement to service connection for a lumbar spine disability, including chronic myositis para lumbar spine muscles, is denied. Entitlement to service connection for hypertension, also claimed as hypertensive cardiovascular disease, is denied. REMANDED Entitlement to service connection for a cervical spine disorder, including chronic myositis para cervical spine muscles, is remanded. Entitlement to service connection for a bilateral shoulder disability, to include degenerative joint disease, is remanded. Entitlement to service connection for a bilateral elbow disability, to include degenerative joint disease, is remanded. Entitlement to service connection for a bilateral wrist disability, to include degenerative joint disease, is remanded. Entitlement to service connection for a bilateral hip disability, to include degenerative joint disease, is remanded. Entitlement to service connection for a bilateral knee disability, to include degenerative joint disease, is remanded. Entitlement to service connection for a bilateral ankle disability, to include degenerative joint disease, is remanded. Entitlement to service connection for a bilateral foot disability, to include degenerative joint disease, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for bilateral peripheral neuropathy of upper and lower extremities, including as secondary due to diabetes mellitus, type II, is remanded. Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), depression, anxiety and memory disorder, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a low back disability, including chronic myositis para lumbar spine muscles, began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that hypertension, also claimed as hypertensive cardiovascular disease, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertension, also claimed as hypertensive cardiovascular disease, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 9, to October 11, 1961. The Board previously remanded this matter for further development in December 2018. With respect to the issues decided herein, the Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of arthritis of the lumbar spine as evidenced by the November 2017 VA examination as well as clinical records. The Veteran has also been diagnosed with hypertension as evidence by the April 2016 VA examination as well as clinical records. Arthritis and hypertension are enumerated conditions under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. However, as the Veteran's active service was less than 90 days, the presumption relating to chronic diseases does not apply. Entitlement to service connection for a lumbar spine disability, including chronic myositis para lumbar spine muscles The Veteran contends his diagnosed low back disability is due to an injury during basic training. Service treatment records show that the Veteran was seen for pain in the mid back in September 1961. The preponderance of the evidence is against finding that a medical nexus exists between the Veteran's low back disability and an in-service injury, event or disease, including the September 1961 incident. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In this regard, although there was a report of back pain in September 1961, no diagnosis of a chronic low back disability was made, and it appears that a urinalysis was ordered. Moreover, an October 1961 service examination prior to discharge showed that the spine was clinically evaluated as normal. Importantly, in his contemporaneous medical history, the Veteran did not report any back issues and expressly denied arthritis, rheumatism, and deformity in bones or joints. Further, the post service medical evidence is silent with respect to any treatment for a back disability until many years after service. Significantly, at the November 2017 VA examination, the Veteran indicated that he received treatment for his lumbar spine condition back in the 1980s related to a worker's compensation claim in Puerto Rico (Fondo Del Seguro Del Estado in Puerto Rico), which would have been almost 20 years after his discharge from service. In sum, the post-service medical evidence of record does not show pertinent symptomatology since discharge. While the Veteran is competent to report experiencing symptoms since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with contemporaneous treatment records, which show no reports of back problems at the time of discharge or until many years after service. Moreover, the Veteran himself has stated that he began receiving treatment for this condition after a worker's compensation claim. The absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Importantly, the November 2017 VA examiner reviewed the claims file and opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that although there is evidence in service treatment records that the Veteran complained of mid back pain in September 1961, since then medical records are silent for condition claimed for at least 10 years after being released from service. Mid back pain in September 1961 was acute and transitory, which improved with proper treatment given. The examiner continued that medical records were silent for condition claimed for at least 10 years after being released from active service, which means that there was no continuity of treatment after being released from active service (until approximately 20 years). After reviewing the medical evidence, the examiner found that there was no evidence to suggest a direct nexus of casualty between military service injuries to the present actual lumbar condition. Lumbar disc disease with spondylosis is a chronic condition that tends to get progressively worse over time with natural aging process and/or due to repetitive trauma. As seen in the medical literature, a person does not develop degenerative joint disease or degenerative disc disease radiographic findings in short period of service (August 1961 to October 1961). This is a longstanding process. Actual lumbar condition is more likely than not caused by age, obesity and occupational history (used to work in maintenance for approximately 20 years), all of which predispose to development of lumbar spine degenerative disc disease. There is significant evidence in medical literature that support the fact that actual lumbar condition can be considered part of normal aging process in patients older than 40 years old. The examiner observed that it was worth mentioning that current lumbar condition was diagnosed by imaging study several years after active-duty service. As mentioned before, the findings of lumbar spine are more likely than not related to the natural process of aging. There is no evidence of continuity of treatment for a condition claimed at least within 10 years of being released from active service. Lastly, the Veteran reported that he received treatment for condition claimed at Worker Compensation in Puerto Rico since 1980s. In support of his claim, the Veteran submitted a June 2016 private opinion by C.M.Q., M.D., which found that the Veteran had chronic low back pain and myositis para-lumbar spine muscles. The examiner found that the Veteran's disabilities are more probable than not secondary to his military service performance. However, the Board finds the private opinion has minimal probative value as the examiner provided no rationale for their finding; and did not discuss the subsequent 1980 workman's compensation injury or gap between service and post-service treatment. As such, this opinion is outweighed by the November 2017 VA examination with opinion. The November 2017 VA examiner is probative because it based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his low back disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus in this case. This issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which shows that the Veteran's current disability is not related to service. In conclusion, for all the foregoing reasons, the claim for service connection for low back disability is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Entitlement to service connection for hypertension, also claimed as hypertensive cardiovascular disease The Veteran generally asserts that his hypertension is related to service. The preponderance of the evidence is against finding that a medical nexus exists between the Veteran's hypertension, also claimed as hypertensive cardiovascular disease, and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In this regard service treatment records are silent with respect to any findings of hypertension. Moreover, an October 1961 service examination prior to discharge showed that the Veteran's blood pressure was 100 over 70. There was no finding of hypertension. Moreover, in his contemporaneous medical history, the Veteran expressly denied high blood pressure. Importantly, at the April 2016 VA examination, the Veteran reported that he was diagnosed with hypertension in 1989, approximately 28 years after his discharge from active service. He has not provided any lay evidence of pertinent symptomatology. Further, the post-service medical evidence of record also does not show pertinent symptomatology since discharge. Importantly, the April 2016 VA examiner reviewed the claims file and opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that that blood pressure on separation was normal. The rest of the service treatment records are silent for high blood pressure. The Veteran's diagnosis of hypertension was in 1989, more than 25 years after the last day of active service. Again, the June 2016 private opinion by C.M.Q., M.D., found that the Veteran's hypertensive cardiovascular disease is more probable than not secondary to his military service performance. However, as discussed above, the Board finds the private opinion has minimal probative value as the examiner provided no rationale for their finding; and did not discuss the lack of any findings in service and the 28 year gap between service and the diagnosis. As such, this opinion is outweighed by the April 2016 VA examination with opinion. The April 2016 VA examiner is probative because it based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his hypertension is related to an in-service injury, event, or disease, he is not competent to provide a nexus in this case. This issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which shows that the Veteran's current disability is not related to service. In conclusion, for all the foregoing reasons, the claim for service connection for hypertension, also claimed as hypertensive cardiovascular disease, is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder, including chronic myositis para cervical spine muscles, is remanded. 2. Entitlement to service connection for a bilateral shoulder disability, to include degenerative joint disease, is remanded. 3. Entitlement to service connection for a bilateral elbow disability, to include degenerative joint disease, is remanded. 4. Entitlement to service connection for a bilateral wrist disability, to include degenerative joint disease, is remanded. 5. Entitlement to service connection for a bilateral hip disability, to include degenerative joint disease, is remanded. 6. Entitlement to service connection for a bilateral knee disability, to include degenerative joint disease, is remanded. 7. Entitlement to service connection for a bilateral ankle disability, to include degenerative joint disease, is remanded. 8. Entitlement to service connection for a bilateral foot disability, to include degenerative joint disease, is remanded. 9. Entitlement to service connection for bilateral hearing loss is remanded. 10. Entitlement to service connection for tinnitus is remanded. 11. Entitlement to service connection for GERD is remanded. 12. Entitlement to service connection for prostate cancer is remanded. 13. Entitlement to service connection for diabetes mellitus, type II, is remanded. 14. Entitlement to service connection for bilateral peripheral neuropathy of upper and lower extremities, including as secondary due to diabetes mellitus, type II, is remanded. 15. Entitlement to service connection for an acquired psychiatric disability, including PTSD, depression, anxiety and memory disorder, is remanded. The Veteran asserts that the remaining disabilities on appeal are all due to his period of active service. Again, in the June 2016 opinion, Dr. C.M.Q. diagnosed the Veteran with the following disabilities: chronic cervical spine pain; degenerative joint disease of the bilateral shoulders, elbows, and wrists; degenerative joint disease of the bilateral hips, knees, ankles, and feet; bilateral sensorineural hearing loss and tinnitus; GERD; status post prostate adenocarcinoma; diabetes mellitus, type II; diabetic neuropathy of the upper and lower limbs; and generalized anxiety disorder with major depression disease and PTSD. The private examiner opined that the Veteran had cardiovascular, musculoskeletal, oncologic diseases, and psychiatric disorders, which are more probable than not secondary to his military performance. While Dr. C.M.Q. discussed some medical evidence, his opinion is inadequate to be the basis for the grant of service connection as the opinion is conclusory in nature with no rationale provided. See Nieves-Rodriguez, supra. VA's duty to assist also includes obtaining a medical examination or opinion when such is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or medical opinion is necessary if the evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) establishes that the claimant suffered an event, injury, or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the speculative, conclusory opinion of Dr. C.M.Q. is not sufficient to award a grant of the benefits sought on appeal, there is an indication that the Veteran's diagnosed disabilities may be associated with an injury or disease incurred during his active service. Thus, the Board finds that the Veteran should be afforded appropriate examinations to determine the nature and etiology of the remaining disabilities on appeal. In light of the need to remand, additional VA clinical records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA clinical records dated from August 2020. 2. Schedule the Veteran for appropriate examinations with appropriate examiner(s) to determine the nature and etiology of the following: cervical spine disorder, including chronic myositis para cervical spine muscles; bilateral shoulder disability, to include degenerative joint disease; bilateral elbow disability, to include degenerative joint disease; bilateral wrist disability, to include degenerative joint disease; bilateral hip disability, to include degenerative joint disease; bilateral knee disability, to include degenerative joint disease; bilateral ankle disability, to include degenerative joint disease, bilateral foot disability, to include degenerative joint disease; GERD; prostate cancer; and diabetes mellitus, type II, with associated bilateral peripheral neuropathy of upper and lower extremities. After examining the Veteran and reviewing the claims file, the examiner(s) should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each identified disability was incurred in or is otherwise causally related to the Veteran's active service. The examiner(s) should provide a detailed rationale for all opinions given and should specifically comment on the June 2016 opinion of Dr. C.M.Q., which relates each of the above diagnoses to the Veteran's active service. 3. Schedule the Veteran for an audiological examination with an appropriate examiner to determine the nature and etiology any hearing loss and tinnitus. The examiner must determine whether the Veteran meets the criteria for a bilateral hearing loss disability under VA regulations. After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any hearing loss and tinnitus were incurred in or is otherwise causally related to the Veteran's active service. The examiner should provide a detailed rationale for all opinions given and should specifically comment on the June 2016 opinion of Dr. C.M.Q., which relates the Veteran's hearing loss and tinnitus to the Veteran's active service. 4. Schedule the Veteran for a mental disorder examination with an appropriate examiner to determine the nature and etiology any diagnosed acquired psychiatric disorder. After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder was incurred in or is otherwise causally related to the Veteran's active service. The examiner should provide a detailed rationale for all opinions given and should specifically comment on the June 2016 opinion of Dr. C.M.Q., which relates the Veteran's psychiatric disorders to the Veteran's active service. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.