Citation Nr: A21020087 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 190422-18079 DATE: December 16, 2021 ORDER Readjudication of the claim for service connection for a low back disability is granted. Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for neuropathy of the bilateral upper extremities is remanded. FINDINGS OF FACT 1. Since an unappealed February 2000 rating decision, new and relevant evidence has been received to prove or disprove the claim for service connection for a low back disability. 2. The Veteran's low back injury was not incurred during his period of active service; any current low back injury is unrelated to service. CONCLUSIONS OF LAW 1. The criteria to readjudicate the claim for service connection for a low back disability are met. 38 C.F.R. § 3.2501 (2021). 2. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from June 1977 to March 1978. In January 2021, the Veteran testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. A rating decision was issued under the legacy system in March 2018 and the Veteran submitted a timely notice of disagreement. In April 2019, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The Veteran opted the claim(s) into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting an April 2019 VA Form 10182, Decision Review Request: Board Appeal, identifying the April 2019 SOC. Therefore, the April 2019 SOC is the decision on appeal. In the April 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the April 2019 SOC, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. In April 2021, the Veteran's attorney stated that the Veteran began seeking treatment for back pain at a VA facility in 1982. The Veteran also testified to seeking treatment in for back pain in 1982. The Veteran's attorney asserts that the VA did not make efforts to obtain those treatment record and that the Veteran's claim should be remanded in with instruction to attempt to obtain treatment records. However, an April 2019 VA correspondence to the Veteran notes: We requested your VA Medical Center Medical Records, from the Philadelphia VA Medical Center, from June 1, 1982 through September 1, 1998. We have determined that these records cannot be located and therefore are unavailable for review. All efforts to obtain the needed information have been exhausted, and based on these facts, we have determined that further attempts to obtain the records would be futile. Your claim file contains documentation of the written and telephonic efforts we made to attempt to obtain these records. The Board finds that the VA did attempt to obtain VA medical records for the Veteran's claim, the medical evidence could not be located, and that any further attempt to locate the evidence would be futile. The Veteran was informed of this attempt to locate the records and decision by the VA in the April 2019 correspondence. The Board finds that there was no pre-decisional error of the duty to assist the Veteran. A remand of the Veteran's claim in effort to obtain these VA treatment records is not required. New and Relevant Evidence 1. Readjudication of the claim for service connection for a low back disability In February 2000, the RO denied the Veteran's claim for service connection for a back disability. He did not submit a notice of disagreement and new and material evidence was not received within one year of its promulgation. The February 2000 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156 (d). Relevant evidence is evidence that "tends to prove or disprove a matter at issue in a claim." 38 C.F.R. § 3.2501. Evidence added to the record since a final February 2000 rating decision includes additional treatment records relating to the Veteran's current low back disability and testimony from the Veteran regarding an in-service back injury. The Board finds that new and relevant evidence has been added to the record and that readjudication of the claim for service connection for a spine disability is warranted. Service Connection Service connection may be granted 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. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for a low back disability The Veteran claims entitlement to service connection for a low back disability. The Veteran's VA and private medical treatment records do note a diagnosis of a low back disability. A January 2016 VA Back Conditions examination noted diagnoses of degenerative disc disease (DDD) and degenerative joint disease (DJD). At his January 2021 Board Hearing, the Veteran testified that he injured his back during a field exercise in basic training. The Veteran's service treatment records note a complaint of back pain in November 1977, during his period of active service. The Veteran's active service injury was diagnosed as a muscle strain. However, a February 1978 Report of Medical Examination, completed just prior to the Veteran's discharge is silent for complaints of back pain or a diagnosis of a low back disability. The Veteran's February 1978 Report of Medical History shows that the Veteran stated he did not experience recurrent back pain; lameness; bone, joint or other deformity; or arthritis, rheumatism, or bursitis. A May 2002 VA neurology consult treatment record notes that the Veteran had been experiencing "chronic low back pain for last two years, started in the year 2000" after lifting heavy construction equipment. The report notes "no prior back problem." At the neurology consult, he reported having sharp pain in his back that did not feel better, and then after he went home, he became to experience more pain in his back and ribs. He described his pain as "progressive," and that he has "continued to have back pain," which he described as "more or less constant but fluctuates" with good days and bad days. The Veteran was diagnosed with chronic intractable back pain secondary to chronic strain and DJD. Subsequent VA treatment records from 2006 and 2007 list back pain as a condition but do not address its onset or etiology. A July 2014 VA neurology consult specifically for back pain noted that the pain had been present for the previous 11-12 years, placing onset in 2002 or 2003. It noted that he was last treated for his chronic back pain in 2007, but reported it had worsened after his car was struck from behind. The impression was "Chronic low back pain with recurrent flare-ups, secondary to recent MVA." An August 2014 VA neurology consult specifically for his back disability noted that the pain had been present for the previous 11-12 years, placing onset in 2002 or 2003. Further, a January 2015 private medical record notes that the Veteran began receiving treatment for an exacerbation of back pain following a motor vehicle accident in April 2014. He stated that his car was rear ended. In March 2015 and April 2015, the Veteran saw his private provider for followup visits after his January 2015 appointment. He reported ongoing lower back pain. The provider's impression was an exacerbation of lower back pain secondary to lumbar sprain/strain after a motor vehicle accident in April 2014. A May 2015 VA primary care follow up appointment was specifically for back pain. The Veteran reported that he had a motor vehicle accident the previous year where he was rear ended by another car, and it aggravated his back pain. The medical evidence of record prior to his October 2015 claim supports a finding that he injured his back at work in approximately 2000, and that is when his pain began, per his own report. His back pain was chronic after that time. Later evidence shows that he was in a motor vehicle accident, which exacerbated his chronic low back pain. The Veteran filed his claim for service connection for a back disability in October 2015. Shortly thereafter, he began to report continuity of symptoms since service to his health care providers. In July 2016, he claimed to have been injured in basic training. In June 2017, his provider noted, "he states his low back pain began in the service and is generally worse when standing or twisting or during prolonged activity such as mowing the lawn." At a January 2018 physical therapy appointment, the provider noted, "p[atien]t reports LBP since 1978. P[atien]t states that he injured his back during basic training when he fell and hit his back." A February 2018 private medical treatment record from Dr. M. P. states that the Veteran reported that his back pain began in 1977 following an injury on an obstacle course during his period of active service. At a February 2018 VA medical appointment, his treatment provider noted that the Veteran had a "long h[istory] of LBP since 1978 when he claims injury to his back d[ur]ing basic training when he fell and hit his back." The provider noted the July 2014 neurology finding for chronic low back pain with recurrent flare ups, secondary to a recent MVA. At his Board hearing, the Veteran testified that he had injured his back prior to his accident in 2000, and that he thought the accident aggravated this prior injury. The Board assigns less probative weight to the Veteran's reports of continuous symptoms since service. The providers were documenting his self-report, and did not link the back disability to service. Further, there is no evidence that the providers had access to all of the pertinent facts in this case, such as the fact that he injured his back while lifting construction equipment, and reinjured it again in a motor vehicle accident. Additionally, the Veteran's assertions of continuity of symptoms are less credible because they more remote from both service and his work and motor vehicle accidents. The Federal Circuit has held, in the context of reviewing a Court of Federal Claims decision denying compensation under the Vaccine Act, that "[m]edical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally contemporaneous to medical events." Cucuras v. Secretary of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). The Board finds this conclusion to be highly persuasive, and the same logic applies in this case. His reports of the history of his back pain are considered to be the most accurate during treatment for his back injuries where the incentive to be as accurate and truthful as possible is significant. The Veteran sought treatment for back injuries in 2002 and 2015 and specifically described the onset of his pain, and "with proper treatment hanging in the balance, accuracy has an extra premium." Id. It is especially significant that when seeking treatment for his work related incident in May 2002, he specifically reported onset in 2000 and reported "no prior back problem," and then worsening pain after that. Further, subsequent neurology consults specifically for treatment of back pain after a motor vehicle accident noted that his pain had been present for 11 to 12 years, placing onset in 2002 or 2003, which is many years after service, and his treatment providers concluded that his motor vehicle accident exacerbated or aggravated his earlier back pain. Additionally, his reports of continuity of back problems since service did not begin until after he filed his claim for service connection for a back disability in October 2015. The Board notes that it is not relying on a gap in medical treatment to support its finding that there was not continuity of symptoms. Instead, the May 2002 treatment record specifically states that his pain began in 2000 and that he did not have prior back problems. Even assuming that the Veteran sought treatment for his back pain in the 1980s, the May 2002 treatment record provides highly probative evidence in support of a finding that there was not continuity of symptoms. The Veteran specifically stated that the pain began in 2000 and that he did not have a prior back problem. Subsequent treatment records noted onset of pain in approximately 2002 or 2003 and a later exacerbation of that pain due to a motor vehicle accident. His assertion of continuity of symptoms is not credible, and is outweighed by the medical evidence of record. In January 2016, following an in-person examination of the Veteran and review of his medical and service treatment records, a VA examiner concluded it was less likely than not that the Veteran's current back disabilities were incurred during or caused by his period of active service. The examination noted the Veteran's muscle strain during active service but also noted that his February 1978 separation examination and Report of Medical history were silent for complaints of recurrent back pain. The examiner also discussed the Veteran's May 2002 VA treatment record noting that back pain began in 2000 after a work-related injury, and discussed the January 2015 VA treatment record that noted the Veteran's back pain following an April 2014 car accident. The examiner also noted the Veteran's 12-year history of construction work following his period of active service. The examiner concluded "there is no question in my mind that the etiology of the Veteran's current DJD and DDD is not at all related to active duty." The examiner's opinion is highly probative evidence against the claim. The medical evidence is more probative than the Veteran's assertion of continuity of symptoms, which is of diminished credibility. The Board acknowledges the Veteran's contention that his current back disability was incurred during or caused by his period of active service. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 435. However, determining the etiology of the Veteran's back disability requires medical inquiry into the Veteran's anatomical, physiological, and neurological functioning. With regard to the specific issue in this case, whether his back disabilities were incurred in or are related to service, falls outside the realm of knowledge of the Veteran in this case. See Jandreau, 492 F.3d at 1377 n.4. Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, his lay etiology opinion is not competent. The opinion of the January 2016 VA examiner is of significantly more probative value. Finally, the probative evidence of record does not establish that the Veteran's degenerative joint disease was diagnosed with a year of his completion of service. As noted above, the Veteran was not diagnosed until more than two decades after his completion of service. Additionally, the probative medical evidence does not establish a continuity of symptomatology for a back disability. Accordingly, the provisions of presumptive service connection do not apply. See 38 C.F.R. § 3.303(b), (c). The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran's low back disability. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for neuropathy of the bilateral upper extremities The Veteran claims entitlement to service connection for neuropathy of the bilateral upper extremities. In a January 2021 Board Hearing, the Veteran testified to sharp pain running down his arms along with tingling and numbness in his left hand. The medical evidence of record prior to the determination on appeal confirms a diagnosis of cervical radiculopathy of the bilateral upper extremities. A diagnosis of bilateral carpal tunnel syndrome is also noted. He has also been diagnosed with spondylotic changes of the cervical spine, edematous marrow changes at C5-6, and right C5 foraminal narrowing. He was later diagnosed with degenerative changes and a partial tear of his right rotator cuff, and pain in his right shoulder radiating from his neck. The Veteran contends his neuropathy of the bilateral upper extremities was caused by an injury during his period of active service. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. The AOJ's failure to obtain a medical examination and opinion regarding the Veteran's claim for entitlement to service connection for neuropathy of the bilateral upper extremities is a pre-decisional duty to assist error. A medical examination and opinion are necessary to comprehensively evaluate the Veteran's claim for service connection. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his neuropathy of the bilateral upper extremities. The examiner must state all diagnoses for the Veteran's bilateral upper extremities. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disabilities of the bilateral upper extremities began during active service, or are related to an incident of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.