Citation Nr: 21075024 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-51 881 DATE: December 17, 2021 ORDER Entitlement to service connection for a low back disorder is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a right leg disorder, to include peripheral neuropathy, is remanded. Entitlement to service connection for a left leg disorder, to include peripheral neuropathy, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's low back disorder is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1101, 1112, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1963 to August 1967, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board remanded these matters to the RO for further development. As an initial matter, in a September 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for a left total knee joint replacement. As this is considered a full grant of the issue of service connection sought on appeal, the issue is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Additionally, as the Veteran did not timely appeal the issue of whether to reopen the previously denied claim for service connection for spindle cell sarcoma of the left nasal cavity following the October 2021 Statement of the Case (SOC), this issue is also not on appeal before the Board. 1. Entitlement to service connection for a low back disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurrent in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, 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). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. 38 C.F.R. §§ 3.307, 3.309. Further, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). In this case, the Veteran served in Vietnam during the applicable time frame and is, thus, presumed to have been exposed to herbicide agents. When a veteran is presumed exposed to an herbicide agent, a presumption of service connection arises under 38 C.F.R. § 3.309(e), if that veteran develops one of several enumerated conditions associated with herbicide agent exposure. The enumerated diseases shall be service connected even if there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Board notes that the Veteran's diagnosed low back disorder, degenerative disc disease, is not listed among the diseases and conditions presumptively associated with exposure to an herbicide agent as set forth in 38 C.F.R. § 3.309(e). As such, service connection on this presumptive basis is not warranted. Nonetheless, service connection on a direct basis may still be considered. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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, 53 (1990). In the present case, the Veteran contends that he has a low back disorder that is related to service and/or his non-service-connected spindle cell sarcoma of the left nasal cavity. First, the Veteran has been diagnosed with degenerative disc disease of the lumbar spine. See July 2021 VA examination. As such, the Veteran has a current diagnosis for VA compensation purposes. Therefore, the remaining questions are whether the Veteran experienced an in-service injury, event, or disease and whether there is a nexus or link between the Veteran's current disability and any in-service injury, event, or disease. Turning to the evidence of record, the Veteran's service treatment records (STRs) are silent as to any complaints, treatment, or diagnoses related to a low back disorder or low back pain. Specifically, the Veteran's July 1967 separation Report of Medical Examination reflects that the Veteran's spine and other musculoskeletal systems were normal upon clinical evaluation and is otherwise absent for any complaints or diagnoses related to the lumbar spine. The available post service treatment records do not reflect any treatment, complaints, or diagnoses related to his low back until decades after his active service. In this regard, an October 2017 private treatment record reflects that the Veteran was hospitalized with apparently a "stomatitis of the spine" for which he received antibiotics. A November 2017 private treatment record also reflects that the Veteran has multilevel degenerative changes in the lumbar spine. A July 2019 VA treatment record further shows that the Veteran has a history of spine infection in March 2017 status post hospitalization and intravenous antibiotics for six weeks. Moreover, at the February 2021 VA examination, the Veteran reported that he started experiencing back pain around 2014 with falling and that since that time he was diagnosed with spindle cell sarcoma of the left nasal cavity. At the July 2021 VA examination, the Veteran clarified that he was claiming that his back infection, not degenerative or structural back disorders, is secondary to his spindle cell sarcoma. He reported that he was hospitalized in March 2014 with an infection of the spine and that his private physician indicated that his left maxillary sinus tumor behaved in an aggressive and malignant fashion causing spinal infection. Review of the record shows two VA opinions addressing the Veteran's low back disorder. First, in February 2021, a VA examiner opined that it is less likely than not that the Veteran's low back disorder is due to or the result of his spindle cell sarcoma of the left nasal cavity explaining that the low back symptoms can be related to natural progression of aging and obesity and that he had not found a peer review or medical literature article supporting the contention that spindle cell sarcoma of the left nasal cavity is the developmental cause of symptoms related to a low back condition. Thereafter, a March 2021 VA clinician also provided an opinion as to whether the Veteran's low back disorder is secondary to his spindle cell sarcoma of the left nasal cavity. The clinician reviewed the post-service treatment records noting the Veteran was hospitalized with apparently a stomatitis of the spine and that he had a spine infection in March 2017 but noted there are no available records which detail/document this episode. The clinician explained, citing to medical literature, that stomatitis involves a condition involving mucous membranes, not bony structures such as the lumbar spine. As such, the clinician concluded that there is no indication in any of the literature that she reviewed that would suggest that one could develop a stomatitis of the spine and certainly not involving the discs and vertebral bodies, which are subject to degenerative disease. The clinician further noted that review of the Veteran's ears, nose, and throat, surgical, and oncology notes do not reference a spinal condition and/or infection that was related to his cancer or the various treatments he underwent for the cancer. The clinician further explained that the Veteran's records indicate he had a diagnosis of other types of degenerative joint disease having undergone bilateral knee replacement and left hip replacement surgeries and that degenerative disc disease most commonly results from chronic wear and tear, which occurs over time as a result of normal physical activities. She noted that the Veteran's imaging studies are consistent with age related degenerative changes that would be expected to be found as compared to another male of the Veteran's same age who had not had nor undergone treatment for cancer and that, in fact, advanced age is one of the strongest risk factors associated with osteoarthritis. The clinician cited to medical studies in support of these conclusions. Finally, the clinician found that there is no clinical evidence that the Veteran's spinal infection was either a complication associated with his spindle cell sarcoma or has any causal relationship to the Veteran's degenerative disc disease/degenerative joint disease. The clinician reiterated that there is no objective medical evidence that the Veteran's low back disorder is not consistent with age related degenerative changes which are extremely common in a person of the Veteran's age. In light of the above, the Board finds that the preponderance of the evidence is against finding that the Veteran's claimed condition was manifest during service, was shown to have developed as a result of an in-service injury, event, or disease, or is otherwise related to the Veteran's active service. Specifically, the probative medical evidence of record does not indicate that his current low back disorder is related to his time in active service. The Board finds that the March 2021 VA opinion constitutes the most probative evidence concerning the nature and origin of the Veteran's diagnosed degenerative disc disease as this opinion was based upon a review of the Veteran's documented medical history, assertions, and other medical records in the claims file. See Nieves-Rodriguez, 22 Vet. App. at 295. In this regard, the March 2021 VA clinician's opinion sets forth, with detailed rationale and citations to medical literature, that the Veteran's low back disorder was from age-related wear and tear. Therefore, while the Veteran was exposed to herbicide agents in service, the probative medical opinion of record does not reflect that the Veteran's degenerative disc disease is related to such or any in-service injury or event as the clinician explained that the Veteran's diagnosis and imaging studies are consistent with age related degenerative changes. Further, the medical evidence of record does not show any complaints or symptoms related to the Veteran's low back disorder until several years after his active-duty service. Indeed, the Veteran has reported that he did not experience low back symptoms until over 45 years after his discharge from service. See February and July 2021 VA examinations. The Board notes that this delay, while not conclusive, weighs against the establishment of service connection, to include based on a continuity of symptoms. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board acknowledges that the Veteran is competent to report the symptoms that he has experienced. However, there is no evidence to suggest that he is competent to provide an opinion as to the nature and cause of his disability, or to opine that the symptoms that he experienced, to include his exposure to herbicide agents, are related to specific diagnoses. These issues are medically complex, as they require specialized medical education and interpretation of medical test results. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the Veteran is not shown to have appropriate training and expertise, he is not competent to render a persuasive opinion as to such matters. See id. Moreover, the Board acknowledges the Veteran's reports that he had a spinal infection related to his spindle cell sarcoma, and that his private physician told him that his spinal infection was caused by his spindle cell sarcoma and/or treatment. The Board also notes that the Veteran, as a layperson, is competent to relay conversations he has had with medical professionals regarding his symptoms and conditions. However, as the Veteran is not service connected for spindle cell sarcoma, he cannot be granted service connection for any claimed low back disorder on this basis. The Board reiterates that establishing service connection on a secondary basis requires evidence showing that a current disability was caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b). Finally, as noted above, the record does not reflect that the Veteran's low back disorder manifested during his active service or within one year after his separation from service. Indeed, the Veteran has provided lay statements to this point that have been addressed above. As such, presumptive service connection for this disability, on the basis of a chronic disease, in addition to presumptive service connection on the basis of herbicide agent exposure, is not warranted. Accordingly, the record does not indicate that the Veteran's low back disorder is related to service or a service-connected disability. As the weight of the evidence is against the claim, entitlement to service connection for a low back disorder is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for hypertension After review of the record, the Board finds that a remand is warranted to obtain an addendum VA opinion that addresses whether the Veteran's hypertension is related to his conceded in-service herbicide agent exposure. Although the Veteran has asserted that his hypertension is related to his Agent Orange exposure, to date, no VA examiner has provided an opinion as to whether his hypertension is related to his service on this basis. Moreover, it is unclear whether the last VA clinician to provide an opinion, in September 2020, found that the Veteran's hypertension pre-existed his active service as the clinician stated that when considering the two in-service blood pressure readings "it is just as likely that the Veteran entered the military service with a pre-existing hypertensive condition as it is that he separated from service with a hypertensive condition" but also concluded that the Veteran did not develop hypertension while in service. The Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. As such, if a VA examiner determines that a claimed disorder pre-existed active service, the examiner must provide an opinion using the correct standard (clear and unmistakable) for that basis. Accordingly, the Board finds that a remand is warranted for an addendum VA opinion that includes consideration of whether the Veteran's hypertension is related to his in-service herbicide exposure. 2. Entitlement to service connection for a right leg disorder, to include peripheral neuropathy, and entitlement to service connection for a left leg disorder, to include peripheral neuropathy The Board finds that a remand is warranted to clarify the diagnoses associated with the Veteran's claimed right and left leg disorders and to provide an opinion as to whether the identified diagnoses are related to his active service, to include his conceded herbicide agent exposure. In this regard, although the Veteran has undergone various VA examinations and VA has obtained opinions related to the Veteran's claims, his exact diagnoses related to these claims remains unclear while no VA examiner has opined whether the identified diagnoses are related to his herbicide exposure in service. Specifically, the March 2018 VA peripheral nerves examination reflects a finding that the Veteran does not have a peripheral nerve condition but that he was assessed with mild incomplete paralysis of the left femoral nerve. At the time of that examination, the Veteran reported a history of numbness and tingling of the left thigh area since 2015 and that he experienced numbness and tingling of the right foot. On the other hand, a November 2018 VA treatment record indicates that the Veteran was assessed with intermittent peripheral neuropathy and recurrent right leg deep vein thrombosis while the February 2021 VA spine examination reflects that the Veteran had bilateral sciatic nerve radiculopathy. Thereafter, a January 2021 VA opinion reflects that the Veteran has left hip arthroplasty, a left thigh skin graft related to the Veteran's tumor, treatment, and residuals, a right knee arthroplasty, and nonocclusive right thigh deep veinous thrombosis. The July 2021 VA spine examination further shows that the Veteran has bilateral femoral nerve radiculopathy and a history of neuropathy while the April 2021 VA peripheral nerves examination reflects that the Veteran has a diagnosis of left lower extremity neuropathy affecting the femoral nerve but does not have a diagnosis of right neuropathy. Accordingly, and in light of the various diagnoses, a remand is warranted to clarify the diagnoses associated with the Veteran's claims and whether such are related to his active service. Additionally, on remand, the AOJ should attempt to obtain any outstanding private treatment records related to these claims as the evidence reflects there may be outstanding relevant records related to his left and right leg pain. Specifically, at the April 2021 VA examination, the Veteran reported that his private primary care provider performed an Electromyography (EMG) on him and prescribed Gabapentin for his nerve disorder. A May 2018 VA treatment record reflects that the Veteran's private primary care provider is Dr. David Carlson. As such, any outstanding, relevant private treatment records related to his leg claims should be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated April 2021. 2. Provide the Veteran with another opportunity to identify and submit any outstanding private treatment records that are related to his claims. The Veteran reported that he underwent an EMG with his private provider and was prescribed medication to treat his nerve disorder. The evidence also shows that his private primary care physician is Dr. David Carlson and that he was seen at Methodist in July 2016 for deep vein thrombosis. After securing the necessary releases, any identified outstanding records should be obtained and associated with the claims file. 3. Then, obtain an addendum medical opinion from an appropriate medical professional to determine the nature and origin of the Veteran's hypertension. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension had its onset during active service or is otherwise related to active service, to include his conceded exposure to herbicide agents. In providing the above opinion, the VA examiner MUST ADDRESS (1) the NAS, Institute of Medicine, Veterans and Agent Orange: Update 11 (2018), which reflects that NAS upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and an herbicide agent; (2) the increase in the Veteran's blood pressure from 54 at his entrance examination to 88 at his separation examination, and (3) whether the diastolic blood pressure of 88 at separation indicated pre-hypertension. The mere fact that a legal presumption of service connection has not been established for a particular disorder based on herbicide exposure is not dispositive of the question of a nexus to service. Consideration must still be given to the in-service exposure. (b) ONLY IF the examiner determines that the Veteran's hypertension clearly and unmistakably (obvious, manifest, undebatable) pre-existed his active-duty service, then the examiner must (1) explain why the Veteran's hypertension clearly and unmistakably pre-existed his active service; AND (2) opine as to whether such disorder was clearly and unmistakably NOT aggravated (increased in severity) by service, i.e., did not undergo an increase in the underlying pathology during service. In providing the above opinion, the examiner is advised that that the Veteran's claimed disability is NOT reported on his service entrance examination. The examiner is advised that the term "clear and unmistakable" is an onerous standard. In other words, clear and unmistakable evidence leads to a conclusion that is undebatable. The term "at least as likely as not" does not means "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner should comment on all questions above and set forth a complete rationale for all opinions provided. In this regard, a discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis. 4. Obtain an addendum medical opinion from an appropriate medical professional to determine the nature and origin of the Veteran's right and left leg disability claims. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The need for in-person examinations is left to the discretion of the VA examiner. The examiner is asked to respond to the following: (a) Identify/diagnose all disorders during the appeal period related to the Veteran's service connection claims for left and right leg disorders, to include any peripheral neuropathy. The evidence reflects various assessments of left lower extremity neuropathy, incomplete paralysis of the left femoral nerve; right deep vein thrombosis, left thigh skin graft; left hip arthroplasty; and bilateral sciatic and femoral nerve radiculopathy. (b) For each identified diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such had its onset during or is otherwise related to the Veteran's active service, to include his conceded in-service exposure to herbicide agents and service separation examination reports of cramps in his legs. In providing the above opinions, the VA examiner should consider and address as appropriate the Veteran's 1967 separation examination reflecting that he experienced cramps in his legs after exercise. The mere fact that a legal presumption of service connection has not been established for a particular disorder based on herbicide exposure is not dispositive of the question of a nexus to service. Consideration must still be given to the in-service exposure. The examiner should comment on all questions above and set forth a complete rationale for all opinions provided. In this regard, a discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.