Citation Nr: 21006961 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-36 527 DATE: February 8, 2021 ORDER Entitlement to service connection for a thoracolumbar disability, to include residuals of an in-service lumbar strain, is denied. REMANDED Entitlement to service connection for a gastrointestinal disability, to include Crohn's disease, ulcerative colitis, and inflammatory bowel syndrome (IBS), is remanded. Entitlement to service connection for pancreatitis, to include as due to a gastrointestinal disability, is remanded. Entitlement to service connection for diabetes mellitus, to include as due to a gastrointestinal disability, is remanded. FINDING OF FACT The appellant’s current thoracolumbar disability, osteoarthritis of the lumbar spine, is not at least as likely as not due to an in-service back strain in December 2001 when the appellant was on active duty, did not at least as likely as not develop while the appellant was serving on active duty or within a year of his separation from active duty, and continuity of symptomatology is not established. CONCLUSION OF LAW The criteria for service connection for a thoracolumbar disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Air Force from July 1981 to February 1988 and from July 2001 to April 2004. He also served periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Missouri Air National Guard. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant’s claims for service connection. This decision was appealed in a notice of disagreement (NOD) received by VA in August 2014. A Statement of the Case (SOC) was issued by VA in June 2016. VA received the appellant’s Substantive Appeal (Form 9) in August 2016, perfecting the appeal and requesting a hearing before the Board by live videoconference. The appellant appeared before the undersigned Veteran’s Law Judge at a videoconference hearing in April 2019. A transcript of that hearing has been added to the claims file on appeal. This claim was previously remanded by the Board in an August 2019 decision for further development. After the completion of this development, a Supplemental Statement of the Case (SSOC) was issued by VA in September 2020. Service Connection 1. Entitlement to service connection for a thoracolumbar disability, to include residuals of an in-service lumbar strain, The appellant contends that he has low back pain which causes functional limitation and is at least as likely as not related to an in-service twist injury of his back. He asserts that prior to this in-service injury, he had never had any low back pain, and that he has had symptoms of low back pain ever since. After a review of the evidence of record, the Board finds that the preponderance of the evidence establishes that the appellant’s thoracolumbar symptoms and functional impairment throughout the period on appeal have been due to osteoarthritis of the lumbar spine, at the L2-L3 and L4-L5 vertebrae and in the sacroiliac joints. Additionally, the Board finds that the preponderance of the evidence shows that the appellant’s current disability of osteoarthritis in the thoracolumbar spine was not related to his in-service twist injury, did not otherwise develop in active service or within a year of separation from active duty, and that continuity of symptomatology is not established. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence 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’ the so-called nexus’ requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant’s August 2013 VA examination diagnosed the appellant with mild osteoarthritis in the lumbar spine, particularly in the L2-L3 and L4-L5 vertebrae, and with other degenerative changes of the sacroiliac joints. Review of the x-rays indicated to the examiner that there had been no previous trauma to the bones of the thoracolumbar spine. There were no findings of paraspinal strain or lumbar strain or any other disability of the thoracolumbar spine or low back at the time of the examination. A December 2019 VA medical opinion confirmed that the appellant’s symptoms during the period since he filed his claim were more likely than not due to this diagnosis of mild osteoarthritis. Considering this, the Board finds that the appellant has a current disability of osteoarthritis of the lumbar spine, which causes pain and functional limitation. As such, the Board finds that the first element of service connection, a current disability, has been met for this claim. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). There has been no evidence of a chronic sprain or strain of the thoracolumbar spine when this claim was filed, or through the period since this claim for service connection was filed. The appellant does have a history of an injury to his back during his active service. His service treatment records show that in December 2001, shortly before his deployment to Afghanistan, the appellant experienced an injury while engaged in a twisting motion. He reported symptoms of pain and tenderness in his paraspinal area. It was noted as an acute low back pain and the appellant was prescribed ibuprofen and given light duty, with no heavy lifting, for one week. His records do not indicate that he received any additional follow-up care for this injury. The appellant’s service treatment records do not otherwise record any diagnosis of arthritis while on active duty. Considering this, the Board finds that the appellant did at least as likely as not experience an in-service injury, and as such, finds that the second element of service connection has been met. While the appellant does have a current disability of osteoarthritis of the lumbar spine and an in-service injury to his back, in order for service connection to be granted for the current claimed disability, the evidence must at least as likely as not establish a link between the current disability and the active duty injury or event. Upon review of the evidence of record though, the Board finds that the preponderance of the evidence shows that the appellant’s current osteoarthritis of the lumbar spine is related to the natural aging process, and that the appellant’s current disability is not at least as likely as not related to his in-service injury. In making this finding, the Board has relied on the rationale provided by the August 2013 VA examination. The examiner noted that the appellant had a single instance of what appeared to be a back strain while on active duty, that “apparently resolved and did not result in an ongoing chronic problem with the back.” The examiner explained that had the appellant’s in-service injury been chronic it might have been related to the current disability, but that the x-ray findings of mild osteoarthritis indicate a separate origin for the current disability. The examiner explained that had the in-service injury been the cause of the current arthritis, that arthritis would have appeared as “moderate” or worse in the x-ray findings, and that the appearance of mild osteoarthritis indicated the origin was natural aging. In making these findings, the examiner had considered the appellant’s reports that his pain in December 2001 subsided after about a month, and that he had pain off and on after doing yard work over the years since his separation from active service. The examiner also recorded the appellant reporting a significant increase in frequency and severity of symptoms 2 years prior to the VA examination. The Board affords this opinion significant probative weight, as its rationale was provided by an examiner who is competent by training and experience to render an opinion in a case such as this, and because that rationale was well supported, relying on a combination of an examination of the appellant, review of the appellant’s reported medical history, a review of the claims folder, and the findings of diagnostic testing. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (U.S. 2008). The Board has also relied on the December 2019 VA medical opinion, which reasoned that the appellant’s current disability was more likely than not due to obesity and the natural aging process. The examiner again confirmed that current symptoms were more likely than not due to the diagnosis of osteoarthritis in August 2013. The examiner noted that a review of the appellant’s private treatment records, beginning in April 2007, showed that he had begun weight management counseling with a body mass index of 32, in January 2010. These records then did not show an onset of low back pain until April 2011, with pain occurring intermittently prior to that. The private records showed subsequent treatment through the rest of 2011. This, coupled with the examiner’s review of the service treatment records, indicated to the examiner that the in-service injury was acute only, and that the more likely than not cause of the current disability was obesity, along with natural aging. The Board affords this opinion significant probative weight, as its rationale was provided by an examiner who is competent by training and experience to render an opinion on the question at issue, and because that rationale was well supported, relying on a combination of a review of all the evidence of record, to include the prior August 2013 examination and the appellant’s statements therein. The Board has considered the appellant’s lay contentions that his current arthritis is related to the in-service injury. The Board notes that claimants are competent to report symptoms they have experienced and provide a timeframe for the occurrence of those symptoms; however, claimants are not generally competent to provide an opinion as to the cause of those symptoms or to the etiology or date of onset of osteoarthritis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diagnosis of osteoarthritis requires training and experience in conducting and interpreting diagnostic test results and requires specialized knowledge. The record does not include any indication that the appellant has the requisite training, knowledge, or experience to provide an opinion as to the cause of his current osteoarthritis. As such, the Board affords significantly more probative weight to the VA medical opinions from August 2013 and December 2019. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). These opinions reveal that the more likely than not cause of the appellant’s current disability is the natural aging process rather than the in-service injury. Additionally, they note that the current disability more likely than not developed a few years after the appellant’s separation from service, as shown by the appellant’s own reports of back pain being infrequent and related to doing yard work prior to April 2011. As such, the Board finds that the appellant’s current disability was not at least as likely as not incurred during active service, or within a year of separation from active service. Further, the Board affords more probative weight to the VA medical opinions, and the appellant’s own statements at his August 2013 VA examination regarding intercurrent causes of back pain, rather than the appellant’s lay reports regarding continuity of symptomatology made at his August 2019 Board hearing. At the appellant’s hearing, he stated generally that he experienced symptoms following his return from deployment and that his diagnosis of arthritis came after return from deployment. However, he later said the diagnosis was made in 2010 or 2011, more than 5 years after his separation from active service, and even longer since his return from deployment. When these general reports of symptoms are read with the appellant’s statements at his August 2013 examination that he suffered pain off an on after straining the back doing yard work, the Board finds that the preponderance of the evidence is against continuity of symptomatology since service of a chronic disease developed in service. The Board affords greater probative weight to the VA medical examiner opinions which note that symptoms were largely absent for many years between the injury and the beginning on treatment in April 2011. Specifically, these opinions rely on service treatment records which show no ongoing or chronic issues reported or ongoing treatment in service, to include at regular physical examinations. They also rely on the appellant’s own reports regarding pain in the low back between active service separation and April 2011 as being caused by doing yard work. The Board also affords greater probative weight to the appellant’s August 2013 statements than to his more recent statements at his hearing regarding the cause of intermittent symptoms after service. The August 2013 statements are more probative because they provide greater detail, which indicates an intercurrent cause of symptoms, and were made closer in time to the incurrence of symptoms. The statements at the appellant’s August 2019 Board hearing, in contrast, are very general, with little detail and no specific timeframe, and were made when the appellant was much further removed from the precipitating symptoms. Considering all this, the Board concludes that the criteria for service connection for a thoracolumbar disability have not been met. 38 C.F.R. §§ 3.303, 3.307, 3.309. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 3.102 REASONS FOR REMAND 1. Entitlement to service connection for a gastrointestinal disability, to include Crohn's disease, ulcerative colitis, and inflammatory bowel syndrome (IBS), is remanded. The appellant contends that he has a gastrointestinal disability that began during, or was otherwise caused by, his period of active service. Specifically, he asserts that he developed gastrointestinal issues after his deployment to Afghanistan in 2002, which he attributes to the stress of the deployment, eating meals ready to eat (MRE’s) exclusively during his deployment, and exposure to other environmental hazards. The Board regrets further delay in deciding this issue; however, after a review of the evidence of record, particularly the medical opinions obtained after the recent August 2019 Board decision, the Board finds that additional development is necessary prior to adjudicating this claim. To comply with the Board’s previous remand order, a new VA medical opinion was obtained in December 2019. The examiner does appear to have reviewed the claims file, noting numerous instances in which the appellant complained of gastrointestinal symptoms during service. Based on the review of the evidence, the examiner offered a negative opinion as to whether there was a nexus between the appellant’s current disability and his active service. Specifically, the examiner stated that “there was no medical evidence provided to show the acute GI complaints during AD service were related to the chronic pancreatitis, Crohns [sic] disease, ulcerative colitis or DM type 1.” The only rationale for this opinion appears to be that there was “no noted ongoing GI complaint, diagnosis or treatment” at the time the appellant separated from service in 2004. The examiner then went on to explain that Crohn’s disease has several etiologies and that the cause of the appellant’s Crohn’s disease was unclear. The examiner noted that a “virus or bacterium may trigger Crohn’s disease” but did not discuss whether any of the appellant’s in-service gastrointestinal symptoms were early signs of developing Crohn’s disease, to include a diagnosis of giardia infection in 1985. The examiner did not address whether this diagnosis of giardia could be the possible etiology of the appellant’s Crohn’s disease, given the explanation that Crohn’s can be related to an immune system response due to an “invading microorganism.” Additionally, the examiner described the instances of gastrointestinal symptoms during the appellant’s active service as “acute,” and not chronic, despite the appellant regularly seeking treatment for gastrointestinal symptoms lasting weeks at a time throughout his early period of service between 1981 and 1988. In the opinion, the examiner also wrote just “Hereditary.” and cited to the Mayo Clinic’s general web address with no additional explanation. It is unclear what rationale or explanation the examiner was hoping to convey with this. The examiner did not discuss whether the appellant has any history of Crohn’s disease in his family which would suggest a genetic component for his development of Crohn’s disease. The examiner also concluded the opinion with a bare conclusory statement that, “[i]t is less likely than not that the veteran’s Crohns/UC is due to military service in Afghanistan, MREs, stress or environmental factors.” No rationale was provided for this conclusion, despite the examiner stating that the cause of the appellant’s Crohn’s was “not clear.” Ultimately the Board finds that the opinion offered in the most recent VA examination is inconsistent and inadequate for purposes of deciding this issue. As such, the Board concludes that remand is necessary to obtain a new VA examination addressing the etiology of the appellant’s Crohn’s disease. On remand, the examiner should provide an adequate rationale for any rejection of the appellant’s contentions and provide an explanation for any characterization of the many instances of gastrointestinal issues in service being characterized as “acute.” 2. Entitlement to service connection for pancreatitis, to include as due to a gastrointestinal disability, is remanded. 3. Entitlement to service connection for diabetes mellitus, to include as due to a gastrointestinal disability, is remanded. In the December 2019 VA medical opinion, the examiner noted that Crohn’s can lead to both pancreatitis and diabetes mellitus. As both the claims for pancreatitis and diabetes mellitus are related to the claim for a gastrointestinal disease, as these disabilities are claimed to be secondary to the gastrointestinal disability, the Board finds that a decision on these claims is inextricably intertwined with the claim for service connection for a gastrointestinal disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that where a decision on one issue would have a significant impact upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Schedule the appellant for a VA examination for his Crohn’s disease and ulcerative colitis. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the appellant’s Crohn’s disease and Ulcerative Colitis at least as likely as not (50 percent probability) related to active service or did it at least as likely as not develop during active service, even if not diagnosed until after separation? Were the numerous instances of multi-week long periods of gastrointestinal distress throughout the appellant’s active service related to the development of the appellant’s current disabilities or early, but undiagnosed, manifestations of these disabilities? Was the appellant’s diagnosis of giardia infection at least as likely as not (50 percent probability) the cause of his development of Crohn’s disease? Prior opinions have suggested that infection can trigger an immuno-response that triggers the development of Crohn’s disease. Was the stress of the appellant’s deployment to Afghanistan, his consumption of nothing but meals ready to eat (MRE’s) during most of that deployment, or any other environmental factors caused by that deployment, to include lay reports of breathing in particles from burn pits, at least as likely as not (50 percent probability) the cause of the appellant’s current Crohn’s disease or ulcerative colitis. Provide a rationale to support the opinion and answers to the previous questions. In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kleponis, 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.