Citation Nr: 21073758 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-51 627 DATE: December 10, 2021 ORDER 1. Entitlement to service connection for a lumbar spine disability is denied. 2. Entitlement to service connection for diverticulitis is denied. FINDINGS OF FACT 1. A lumbar spine disability was not manifested during the Veteran's service; a lumbar spine disability was not manifested to a compensable degree within a year following his discharge from service; and a current lumbar spine disability is not shown to be etiologically related to his service. 2. Diverticulitis was not manifested during the Veteran's service and is not shown to be etiologically related to his service. CONCLUSIONS OF LAW 1. Service connection for a lumbar spine disability is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. Service connection for diverticulitis is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1983 to April 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal of a September 2015 Department of Veterans Affairs (VA) rating decision. In April 2020, the case was remanded for additional development. At his request, the Veteran was scheduled for a Travel Board hearing in August 2019. He failed to appear, but the notice of hearing scheduled letter was returned as undeliverable. However, his current address was then ascertained, and he has been receiving VA correspondence (prior to and since the prior Board remand which found his hearing requests withdrawn). Neither he nor his representative (in written argument) has requested that the hearing be rescheduled. Rather, expedited Board review of his appeal was sought. Consequently, a hearing request is not found to be outstanding. See 38C.F.R. §20.702. Service Connection Service connection may be granted for disability due to 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 granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When a claimed disability is not noted upon entry into service, the Veteran is presumed to have been in sound condition with respect to such disability on entry in service. Such presumption is rebuttable only by clear and unmistakable evidence that (1) the condition preexisted service and (2) if rebutted, that it was not aggravated by such service (did not increase in severity during service, or that any increase in severity during service was due to natural progression). 38 U.S.C. §§ 1111, 1137, 1153; 38 C.F.R. § 3.306. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 1. Entitlement to service connection for a lumbar spine disability is denied. The Veteran asserts that his lumbar spine disability is related to service. He has stated that he was treated on numerous occasions in service for back issues and that he has continued to experience back pain and loss of motion following discharge from service. See March 2016 Notice of Disagreement (NOD). In a February 1983 Report of Medical History (on induction), he reported treatment for his low back disability earlier that year. This was noted on his February 1983 service entrance examination, and an X-ray study of the lumbar spine was recommended. The report of such X-ray indicates that the Veteran's lumbar spine was found to be normal. The Veteran's spine was normal on clinical evaluation. It was then noted (on the February 1983 Report of Medical Examination) that the Veteran had "no disqualifying defects." At the outset, the Board acknowledges the prior April 2020 Board remand suggested that the Veteran's lumbar spine disability may have pre-existed service. However, as such disability was not noted on service entrance examination, he is presumed sound on entrance in service with respect to a lumbar spine disability. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A February 2000 service treatment record (STR) notes a complaint of mid to low back pain for 6 months. It felt like a constant, non-radiating pressure, and was aggravated by prolonged sitting. He denied injury/trauma. X-rays of the lumbosacral spine revealed mild lumbar spine scoliosis, convex to the left. The vertebral bodies are of normal height and density. The impression was "slight scoliosis, which may be positional" and "otherwise normal lumbar spine." After service, a February 2005 VA treatment record notes complaint of worsening para spinous back pain, lower thoracic spine extending to L1-2. There was no known trauma or injury. It was noted that the "pain coincides with change in job to manual labor installing gas meters." A March 2006 VA treatment record notes the Veteran's complaint of mid to lower back pain for 4 years. The primary diagnosis was backache, unspecified. A February 2009 VA treatment record notes backache on the Veteran's list of problems. An April 2013 VA treatment record notes an impression of mild degenerative changes of the lumbar spine, without acute abnormality. On August 2015 VA lumbar spine examination, the diagnosis was degenerative arthritis of the spine. The Veteran reported that he has had back pain since 2005. The examiner opined that the Veteran's low back degenerative changes are less likely as not incurred in or caused by the lower back condition during service. The examiner explained that the Veteran's STRs show complaints of acute back pain in 1983 and 2000, and that on both occasions, the records do not indicate further treatment or a diagnosis of chronic back condition. The examiner further noted that postservice VA treatment records indicate that the Veteran's back pain coincided with his new occupation. The examiner concluded that the Veteran's current degenerative back condition is more associated with age-related degenerative changes and everyday use, based on the onset of symptoms noted and radiographs in the claims file. See August 2015 C&P Examination. On September 2020 VA examination pursuant to the April 2020 Board remand, following interview and examination of the Veteran and review of his claims file, the VA examiner opined the claimed condition clearly and unmistakably existed prior to service, and clearly and unmistakably was not aggravated beyond its natural progression by an injury, event, or illness in service. The examiner explained, Musculoskeletal strains are common and are considered to be singular episodes of acute stress placed on musculoskeletal structures that cause musculoskeletal pain. These are typically related to a specific injury event that caused a specific pain episode, but most musculoskeletal strains resolve with no sequela. [The] Veteran had an episode of reported back strain prior to service, but his physical exam at the time of enlistment of his spine was negative, suggesting that [the] [V]eteran did not have any back symptoms upon enlisting likely because his back strain had already resolved by that time. [The] Veteran had another history in physical in 1991 (about 7 years after enlistment) where [V]eteran denied having recurrent back pain, and his physical exam revealed a normal spine exam again. [The] Veteran did not have a chronic back condition that existed prior to service, so there is no pre-existing back condition that could have been aggravated beyond its natural progression by military service. It is not in dispute that the Veteran has a lumbar spine disability, namely degenerative arthritis, and what remains necessary to substantiate the claim of service connection for such disability is competent evidence that it is etiologically related to his service. See Shedden, 381 F.3d at 1167. As arthritis of the thoracolumbar spine was not manifested in service or in the first postservice year, a presumption of service connection for such disability (as a chronic disease under 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(a)) is not warranted. While service connection for the thoracolumbar spine arthritis may be established by showing continuity of symptomatology (see Walker v. Shinseki, 708 F 3d. 1331 (Fed. Cir. 2013)), the earliest clinical notation of such pathology in the record is in 2013 (nearly a decade after the Veteran's separation from service). The Board acknowledges the Veteran's allegation of continuity of symptomatology since service, and that lay evidence of continuing symptoms after service may be competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, his thoracolumbar spine arthritis was first clinically noted in 2013, nearly 10 years following service (and was not found on earlier X-ray). While the Veteran is competent to observe that he had complaints of back pain prior to 2013, he is not competent to establish by his observation that the complaints he noted in the remote past represented an underlying lumbar spine arthritis. The diagnosis of arthritis requires medical expertise (informed by diagnostic studies, such as X-rays). See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Notably also, the Veteran's reports of continuous symptoms since service have been inconsistent. For example, in March 2006, he reported mid to lower back pain for 4 years (so approximately from during service in 2002); on August 2015 VA examination, he reported back pain since 2005 (so beginning about 2 years after service); and in March 2016, he reported back pain since service. See March 2016 Notice of Disagreement (NOD). His accounts are insufficient to constitute competent evidence establishing continuity of lumbar arthritis complaints since service. In the absence of evidence of a chronic lumbar spine disability in service, manifestation of lumbar arthritis in the first postservice year, or evidence of continuity of lumbar arthritis manifestations since service, the etiology of a lumbar spine disability first noted in clinical records nearly a decade after separation from service is a medical question. See Jandreau, supra. The preponderance of the competent (medical) evidence is against a finding that the Veteran's current lumbar spine disability is etiologically related to his active service. The Board finds the opinion offered on August 2015 VA spine examination (supplemented by, and consistent with the opinion offered on September 2020 VA examination) to be the most probative evidence on the dispositive question of a nexus between the Veteran's current lumbar spine disability and his service. The opinion reflects familiarity with the record/the Veteran's medical history, and includes rationale that cites to accurate factual data. The Board acknowledges that the prior April 2020 remand deemed the August 2015 VA opinion inadequate because the examiner did not provide the requisite opinion for service connection for a preexisting disorder on an aggravation basis. However, as explained above, he is presumed on entry in service with respect to a lumbar spine disability (as acknowledged and explained by the September 2020 VA examiner, in that there cannot be aggravation of a pre-existing disability where there was no pre-existing disability). The August 2015 VA examiner opined that the Veteran's lower back degenerative changes are less likely as not incurred in or caused by service, explaining that the Veteran's STRs show complaints of acute back pain in 1983 and 2000 that resolved on each occasion with no follow-up treatment or diagnosis of a chronic back condition. The examiner further noted that postservice VA treatment records show that the appearance of the Veteran's back pain after service coincided with his new occupation (which required exertion/bending). The examiner found that the Veteran's current degenerative back condition is more associated with age and daily usage. As discussed above, the August 2015 and September 2020 VA opinions are probative evidence in the matter, and the Board finds them cumulatively persuasive. The Veteran has not submitted any competent (medical opinion or treatise) evidence supporting that his lumbar spine disability was incurred in service, and the record does not include any such evidence. The Veteran is a layperson; consequently, his own opinion is not competent evidence in this matter. See Jandreau, supra. Considering the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current lumbar spine disability is etiologically related to his service. Therefore, the benefit of the doubt doctrine does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for diverticulitis is denied. The Veteran asserts that his diverticulitis began during service in 2002. He states that he was treated for symptoms associated with this condition while serving at Fort Irwin and the Balboa NMC. See March 2016 NOD. The Veteran's STRs show in May 1984, he complained of a stomach ache, and the assessment was gastritis of unknown etiology. In May and October of 1987, he was seen for complaints of diarrhea and vomiting. In May 1989, he was seen for a complaint of having a stomach ache for two days; in June 2002, he complained of having stomach pain in the previous 2 to 3 months; and in October 2002, he was seen for a complaint of persistent left abdominal pain. See STRs. A January 2003 service treatment record shows diagnoses of small sliding hiatal hernia and gastroesophageal reflux disease (GERD). On August 2015 VA examination to determine the etiology of the Veteran's diverticulitis, the examiner opined that the diverticulitis is less likely as not incurred in or caused by diverculosis/diverticulitis during service. The examiner explained that STRs did not show a diagnosis of diverticulitis, and that the upper GI series in 2003 did not show filling defects or findings consistent with diverticulitis. As noted above, the Board remanded this matter in April 2020 for a VA examination to determine the nature and etiology of his diverticulitis, as the August 2015 C&P Examination was deemed inadequate (as the absence of medical treatment or diagnosis in service does not preclude a finding of service connection. On September 2020 VA examination, following interview and examination of the Veteran and review of his claims file, the examiner opined the claimed condition was less likely than not incurred in or caused by the claimed injury, event, or illness in service. The examiner explained, Though a diagnosis of diverticulitis may be missed due to lack of sufficient diagnostic evidence (colonoscopy, barium enema, CT scan, etc.) to suggest gastrointestinal complaints such as abdominal pain (which [V]eteran complained of several times during service) may actually be due to diverticulitis, there is diagnostic evidence in 2002 ruling out that [V]eteran had diverticulitis at the time. [October 3, 2002] Normal barium enema with air contrast was recorded to evaluate [V]eteran's complaints of abdominal pain. According to Beck et. al. (2004), over the past 30 years, contrast enema, computed tomography, and ultrasound have all been used extensively to diagnose the complications of diverticular disease. Barium contrast enema is the most sensitive test for the detection of diverticulosis. Both single contrast and air contrast studies allow ready identification of the characteristic barium-coated outpouchings from the colonic wall. The size of the individual diverticulum may range from a millimeter to several centimeters. The necks of the diverticula may also be quite variable. The segment of colon involved with extensive diverticulosis is often concentrically narrowed, and the accompanying hypertrophy of the colonic muscle layers produces an irregular appearance resembling a sawtooth. After thorough review of [V]eteran's medical records, collecting medical history, conducting a physical exam, and reviewing relevant medical evidence, [V]eteran's diverticulitis is likely than not related to or incurred during service. It is not in dispute that the Veteran has diverticulitis, and what remains necessary to substantiate the claim of service connection for such disability is competent evidence that it is etiologically related to his service. See Shedden, 381 F.3d at 1167. Diverticulitis was not manifested in service, and a diagnosis of diverticulitis in service is not shown. The Veteran alleges that his GI complaints in service reflect onset of diverticulitis then. His STRs note a diagnosis of a small sliding hiatal hernia and GERD (and show he was seen on several occasions for various digestive complaints), but they are silent for findings or diagnosis of diverticulitis. As explained by the September 2020 VA examiner, while evaluation for GI complaints may fail to uncover a diverticular problem is it does not include diagnostic studies sufficient reveal such pathology, here during service the Veteran was actually afforded, including proximately to separation from service, the types of studies that (per cited medical text) are specific for establishing the presence of diverticular disease, and none was found. The September 2020 VA examiner's opinion cites to accurate supporting factual data, medical principles and medical treatise, and is probative evidence in the matter. While the Veteran may be competent to report he had such GI complaints as stomach and abdominal pain, vomiting, and diarrhea, he is not competent to establish by his own opinion that represented symptoms of an underlying diverticulitis in service (rather than the diagnoses then made). That is a medical question, beyond the realm of common knowledge, and incapable of resolution by lay observation. It requires require medical expertise. See Jandreau, 492 F.3d at 1377. The Veteran does not cite to medical opinion or treatise supporting his theory of entitlement, and his own opinion has no probative value in the matter. ; The first-documented complaint of, and treatment for, diverticulitis was approximately 10 years after the Veteran's separation from service, and there is no basis in the record for finding it was present earlier. There is likewise no competent evidence that the Veteran's diverticulitis is or may be etiologically related to a disease or injury therein to include the various acute digestive complaints for which he was seen in service or the later complaints when a hiatal hernia and GERD were diagnosed in service. The Board finds the September 2020 VA examiner's opinion persuasive. Considering the foregoing, the Board finds the preponderance of the evidence is against a finding that the Veteran's current diverticulitis is etiologically related to his active service, and against his claim. Accordingly, the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.