Citation Nr: 21074938 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 20-25 212 DATE: December 16, 2021 ORDER Entitlement to service connection for a back disability, to include radiculopathy, is denied. Entitlement to service connection for a right upper extremity disability, to include as residuals of a cold injury, is denied. Entitlement to service connection for a left upper extremity disability, to include as residuals of a cold injury, is denied. Entitlement to service connection for a right lower extremity disability, to include as residuals of a cold injury, is denied. Entitlement to service connection for a left lower extremity disability, to include as residuals of a cold injury, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a current back disability, to include radiculopathy, was incurred in or caused by service. 2. The preponderance of the evidence is against finding that a right upper extremity disability began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that a left upper extremity disability began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against a finding that a right lower extremity disability began during active service or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against a finding that a left lower extremity disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability, to include radiculopathy, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a right upper extremity disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a left upper extremity disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a right lower extremity disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a left lower extremity disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1952 to October 1964. The Veteran served in the Korea Conflict and was awarded the Purple Heart Medal. These matters came before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were last before the Board in August 2020, when it was remanded for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). In cases where a veteran served continuously for 90 days or more during active service and arthritis manifests to a degree of 10 percent within one year from the date of service termination, the arthritis shall be presumed to have been incurred in service even though there is no evidence of arthritis during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When all the 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran asserts that he has a back disability related to an in-service injury. He asserts that while in Korea he was hit by an explosive device and thrown down a hill where he landed in a creek unconscious. He contends the in-service injury is causing him numbness in his left leg and pain in his lower back. He asserts that he has disabilities of the upper and lower extremities due to cold weather conditions in active duty service. He reports that while in Korea, he slept in the open for about 7 months that has caused him severe pain to his upper and lower bones to include cramping. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that his current back disability, to include radiculopathy, and disabilities of the upper and lower extremities were incurred in or caused by service. The Veteran has current diagnoses of bilateral chronic L5 radiculopathy, bilateral carpal tunnel syndrome, bilateral osteoarthritis of the hands and feet and lumbar spine degenerative disc disease. The Board notes that in accordance with the prior remand directives, the RO made several attempts to obtain any outstanding service treatment records, personnel records and post service treatment records. To the extent that such records were partially recovered, the Board recognizes the insufficiency of such records. The Board is also aware that in such cases, VA has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). While the Board's analysis of the claims on appeal have been undertaken with these heightened duties in mind, the dispositions herein do not turn on the absence of the Veteran's service records. Specifically, the Veteran has not asserted that while in service he voiced complaints of or received treatment for any of the claimed disabilities in this decision. Moreover, the Veteran has not asserted that any of the missing records contain such complaints or treatment. In that regard, the Board acknowledges the Veteran's concerns related to inadequate VA dispositions due to missing records; however, in conjunction with the above listed reasoning and as further explained below, any missing records in this case are irrelevant to the dispositions rendered herein. The Veteran's service personnel records reflect a Korean service medal with 2 bronze service stars, National Defense Service Medal, Combat Infantryman Badge 1st award, United Nations service medal and a Purple Heart award. The asserted inservice injuries are found to be consistent with the types and circumstances of the Veteran's service. 38 U.S.C. § 1154(a). Post-service treatment records reflect that in May 2008, the Veteran reported low back pains in the mornings. A February 2011 imaging study of the lumbar spine revealed degenerative changes in the facet joints as well as the sacroiliac joints. An October 2011 treatment notes indicate that the Veteran complained of low back pain that irradiates to left lower extremity, since the past weeks. He denied falls and trauma. The Veteran underwent a VA examination in May 2018, during which he reported that for the last several years he has had lower back pain that has progressively worsened in terms of pain. The examiner diagnosed lumbar spine degenerative of the spine and bilateral chronic L5 radiculopathy. The examiner opined that the Veteran's back disability is less likely than not related to his service. In support of this opinion, the examiner noted that the Veteran's service treatment records (STRs) are silent for complaints, evaluations, or treatments related to his lumbar disability with radiculopathy. The Veteran underwent another VA spine examination in September 2021 where he reported low back symptoms onset in 1970 and radiculopathy symptoms of bilateral lower extremities onset in 1972. The September 2021 VA examiner opined that the Veteran's lumbar disability with bilateral lower extremity radiculopathy is less likely than not related to any injury or any incident in active duty service, to include combat related injuries. In support of this, the examiner notes that there is no evidence of radiculopathy during active duty service. The examiner carefully reviewed the Veteran's CT scan from 2011 and explained that the Veteran's back is compatible with non-traumatic lumbar spine degenerative disc disease, as seen in normal progression of aging process. In addressing whether the current back disability is due to the in-service combat related injury, the examiner notes that the Veteran reported the onset of the condition to be in 1970, which is several years after his combat service. The September 2021 VA examiner opined that the Veteran's bilateral upper extremities are less likely than not related to any injury or any incident in active duty service, to include combat related injuries. The examiner notes the Veteran's report that he began having carpal tunnel syndrome symptoms, to include numbness and pain at both hands and fingers. The examiner explains that the diagnosis of carpal tunnel syndrome was more than 50 years after active duty service. The September 2021 VA examiner opined that the Veteran's bilateral lower extremities with radiculopathy are less likely than not related to any injury or any incident in active duty service, to include combat related injuries. The examiner notes the Veteran's report that radicular symptoms of bilateral lower extremities started in 1972, which is several years after active duty service. The September 2021 VA examiner additionally opined that the Veteran's bilateral lower extremity radiculopathy is at least as likely as not related to the Veteran's non-service connected lumbar disability. The examiner provided the rationale that medical evidence supports the fact that the most common etiology for the development of lower extremities radiculopathy is having lumbar spine degenerative disc disease. The Veteran was afforded another VA examination to address the claimed in-service cold injuries. A September 2021 VA examiner did not diagnose any cold injuries. The examiner opined that any cold injuries are less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner provided the rationale that there is no evidence of any cold injuries in the actual evaluation of the Veteran nor in the service records. The Board finds the opinions of the September 2020 VA examiners combined to be highly probative and persuasive, as such are based on a review of the evidence of record and supported with reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Taken together, the opinions establish that the Veteran's current degenerative arthritis of the spine and disabilities of the bilateral upper and lower extremities are less likely than not related to service, to include any events or injuries during service; has not been continuous since service; and are more likely than not due to aging. The opinions were based on a thorough review of the medical evidence and are supported by articulated rationale for the conclusions reached that is consistent with the evidence. Additionally, the examiners offered alternative etiologies for the Veteran's current lumbar spine arthritis; namely aging and notes that the radiculopathy of the lower extremities are related to the lower back degenerative disc disease. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the opinions are afforded great probative weight. In this case, even presuming that the Veteran sustained combat injuries pursuant to 1154(b), the Board finds that the most probative evidence establishes that his current low back disability with radiculopathy and disabilities of the bilateral upper and lower extremities, to include as residuals of cold injury are not related to his military service. As discussed above, the Board finds the VA examiners opinion combined highly probative, as the examiner specifically considered the Veteran's lay statements regarding his injuries. There is no positive nexus opinion of record, and the VA and private treatment records do not suggest an association or link between the Veteran's current low back arthritis, radiculopathy of the bilateral upper and lower extremities and service. Although the Veteran believes that a current low back disability with radiculopathy, bilateral upper and lower extremity, to include as residual of cold injury, are related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the diagnosis and etiology of spine disorders are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his current disabilities is not competent medical evidence. The Board finds the VA examiners' opinions and medical evidence to include the available service treatment records and post-service medical evidence, to be significantly more probative than the lay assertions. In sum, the most probative evidence indicates the Veteran's current back disability and disabilities associated with the bilateral upper and lower extremities, to include as residual of cold injury, did not arise during service, did not manifest within one year following discharge from service, and is not related to service. Accordingly, service connection for current back disability, to include radiculopathy, and disabilities of the bilateral upper and lower extremities, to include as residual of cold injury, are denied. CONTINUED ON NEXT PAGE... 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 claim, that doctrine is not applicable. 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). M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Asare, Associate 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.