Citation Nr: 21006146 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-24 902A DATE: February 3, 2021 ISSUE Entitlement to service connection for a back disability, to include as due to service-connected gastrointestinal disorder, for accrued benefits purposes. ORDER Entitlement to service connection for a back disability, to include as due to service-connected gastrointestinal disorder, for accrued benefits purposes is denied. FINDINGS OF FACT The Veteran’s back disability was not shown to be causally or etiologically related to any disease, injury, or incident in service, nor proximately due to or aggravated by his service-connected gastrointestinal disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability, to include as secondary to service-connected gastrointestinal disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from March 1971 to August 1974. The Veteran died in May 2019 and in that same month, Veteran’s spouse requested to be substituted for the accrued benefits purposes. The RO notified the Veteran’s spouse in May 2020 that she had been recognized as the appropriate substitute for the deceased Veteran. As such, the Board finds that the appellant has been substituted as the claimant with respect to the issue on appeal. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. Prior to his passing, the Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in July 2017 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. The Veteran’s claim was previously remanded for further development and adjudication in November 2017. The claim was then returned to the Board, and in April 2019, the Board found that the November 2017 remand directives had not been substantially followed. As a result, the Veteran’s claim was again remanded for additional development. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Appellant in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish an entitlement to service connection, the Appellant must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, the Appellant must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Appellant’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for a back disability, to include as due to service-connected gastrointestinal disorder, for accrued benefits purposes. Prior to his death, the Veteran had claimed that his back disability was due to his service-connected gastrointestinal disorder. As discussed above the Veteran was given a hearing before the undersigned Veterans Law Judge in July 2017. During the hearing, the Veteran testified that he believes his current back problems were due to his gastrointestinal problems, because they caused weaker stomach muscles and a lack of core strength. The Veteran’s Representative argued during the hearing that “the fact that [he] lacked core strength because of the two very involved abdominal surgeries, that has affected [his] back.” During the hearing, the Veteran’s spouse also testified that, as it relates to his back, “lifting … bending, anything like that would require the use of your core muscles … was a problem for him.” The Veteran was competent to report the symptoms he experiences, such as those associated with his back disability. The Board also notes that the Appellant, as the Veteran’s spouse, is competent to report as to that which she witnessed. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). To begin, the Veteran had a current diagnosis of a back disability. The Veteran was given a VA examination in December 2018. The Veteran was seen in person, and his claims file was reviewed. Upon clinical testing, the VA examiner confirmed that the Veteran had a current diagnosis of a lumbosacral strain of his lower back. The Veteran’s VAMC records also indicate that he was seen frequently for lower back pain, including a note that states he had “prior injured lower back at work.” See September 2016 VAMC note. As such, the Board has confirmed that during his lifetime, the Veteran had a current diagnosis of a back disability. Thus, he had met the first criteria for entitlement to service connection. 38 C.F.R. § 3.310. The Board also notes that during his life, the Veteran was service connected for residuals of a gastrectomy, which he had claimed as a gastrointestinal disorder, at 60 percent disabling, under Diagnostic Code 7308. As such, the Veteran had a service-connected disability, and thus the second criteria for entitlement to service connection has also been met. 38 C.F.R. § 3.310. Turning to the third criteria, there must be evidence that the non-service connected back disability is either proximately due to or the result of the service-connected gastrointestinal disorder, or aggravated (increased in severity) beyond its natural progress by the gastrointestinal disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As noted above, the Veteran was given a VA examination in December 2018. The Veteran was seen in person, and his claims file was reviewed. The examiner then wrote that the Veteran’s back disability was not at least as likely as not due to his active duty service. The following rationale was provided: After a review of the medical and scientific evidence, [and the Veteran’s claims file] the Veteran’s claimed back condition is less likely as not the result of the Veteran’s service. There is no record of a significant documented injury while in service. There must be documented pathology to support the claim. There is medical or scientific evidence linking a back injury with military service ([one] in 1971 that resolved) to a current condition today. The Veteran’s current back condition is more likely than not from a non-service-related injury overuse syndrome, or the natural process of aging. Unfortunately, without any further evidence the Veteran’s claim cannot be supported at this time. While that examination provided a negative etiological opinion, the opinion provided only discussed the theory of direct service connection. An opinion on secondary service connection was not offered. For that reason, the Veteran’s claim was remanded in April 2019 for a subsequent VA examination. That VA examination occurred in October 2020. Due to his death, the Veteran was not seen in person, however his claims file was reviewed. After an extensive discussion of the available evidence, including the Veteran’s lumbosacral disability and his gastrointestinal disability, the VA examiner found that the back disability was not proximately due to or the result of the Veteran’s service-connected gastrointestinal disability. The following rationale was provided: While it is certainly likely that Veteran had decreased core strength at least in part due to previous partial gastrectomy, that fact has no bearing on the development or progression of Veteran’s back conditions. The examiner then discussed the diagnostic history of the Veteran’s back disability, including notes on his back injuries, subsequent surgeries, and a “fall onto concrete steps in 2010 that further compromised back function.” The examiner then discussed the history of the Veteran’s gastrointestinal disability, including his resulting decreased core strength. The following further rationale was then provided: Decreased core strength can then, in turn, result in strain for the back muscles. However, it cannot be established that decreased core strength results in disc degeneration or other spine degeneration, based on known pathophysiology and medical literature. It cannot be established then that Veteran’s decreased core strength cause degenerative changes in Veteran’s spine/discs … as decreased core strength (even if resulting from Veteran’s partial gastrectomy) has no known effects on degeneration of spine/discs and no direct effects on the spine itself (such as the effects of trauma), and as Veteran had specific direct trauma events over time that caused back conditions to progress, it cannot be established that Veteran’s decreased core strength due to service-connected partial gastrectomy in any way caused or affected the progression of/aggravated Veteran’s back conditions. As such, a negative etiological opinion was provided. While the Board did not request a VA examiner’s opinion on secondary service connection as it relates to the Veteran’s service-connected acquired psychiatric disorder, variously diagnosed as major depressive disorder, anxiety disorder, and PTSD, the RO also forward the Veteran’s claims file to a VA examiner to provide that etiological opinion. That opinion was rendered in October 2020. The examiner had access to the Veteran’s claims file, and it is clear from the rationale provided that a review of the evidence took place. The examiner opined that the Veteran’s back disability was also less likely than not proximately due to/aggravated by the service connected acquired psychiatric disorder. The examiner then wrote that While psychiatric disorders can and do alter subjective perceptions of pain, including back pain, psychiatric disorders do not actually cause organic damage to body systems or tissues, so not affecting progression or outcomes of physical deterioration disorders. As psychiatric disorders in no way effect changes in the spine or discs, or any other specific tissues, then it is not possible that Veteran’s service-connected psychiatric disorders aggravated Veteran’s back conditions beyond normal progression. Thus, a negative etiological opinion was provided. There is no evidence that the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran’s back disability was not due to his active duty service, nor was it proximately due to, nor aggravated by, his service-connected disabilities. To begin, the Veteran’s claims file first contains an opinion from December 2018, which denied that the Veteran’s back disability was related to his active duty service. That opinion considered the in-service complaints of the Veteran, as well as his diagnostic history of his back disability. That opinion, to the extent it discussed service connection on a direct basis, has been afforded probative weight. As an opinion on secondary service connection was not rendered, the Veteran’s claim was remanded, and an opinion was obtained in October 2020. While an in-person examination was impossible, the examiner provided an extensive review of the Veteran’s claims file, which included a discussion of the medical history of the back disability, as well as the gastrointestinal disorder. Following that review, a detailed rationale was provided which discussed the impact that the Veteran’s gastrointestinal disorder and the resulting lack of core strength, could not have on the Veteran’s back disability. The examiner cited the “known pathophysiology and medical literature,” on the subject, and the opinion provided also discussed possible aggravation of the Veteran’s back disability. The Board has also afforded this examination significant probative weight as to the etiology of the Veteran’s back disability. In addition, in furtherance of the RO’s Duty to Assist, the Veteran’s claim was also forwarded for a subsequent opinion on secondary service connection as it relates to the Veteran’s service-connected acquired psychiatric disorder. The opinion provided also discounted the relationship and potential for aggravation between the Veteran’s back disability and his service-connected psychiatric disorder. That negative etiological opinion has also been afforded significant probative weight. Despite the Veteran not claiming that his service-connected acquired psychiatric disorder caused his back disability, that opinion was still obtained, pursuant to the RO’s Duty to Assist. The Board also notes that the Veteran’s claims file contains no positive etiological opinions, either from VA examiners or otherwise, that purport to link his back disability to a service-connected disability. Thus, the Board finds that the Veteran’s back disability was not related to his active duty service, nor his service-connected gastrointestinal disorder and/or his acquired psychiatric disorder, and that the Appellant has therefore not met the final criteria for entitlement to service connection. 38 C.F.R. §§ 3.303, 3.310. (Continued on next page.) The Board truly sympathizes with the Appellant and has thoroughly contemplated the Veteran’s claims of entitlement to service connection. Unfortunately, however, the Board must find that the preponderance of the evidence is against such a finding. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, the doctrine is not applicable. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, although the Board could not render a favorable outcome in this decision, we would like to express our gratitude for the Veteran’s honorable service to our country. The Board is also cognizant of the loss the Appellant has sustained and the sacrifices that she has made in support of her late husband; as such, we would also like to express our gratitude for her service in that regard. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.