Citation Nr: 21008526 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-25 713 DATE: February 17, 2021 ORDER Entitlement to service connection for a back disability to include as due to service-connected disease or injury is denied. FINDING OF FACT Degenerative arthritis of the spine and IVDS did not manifest in service or within one year of separation from service and is not otherwise attributable to service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of the spine and IVDS have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38C.F.R. §§3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from December 1968 to December 1972 including service in the Republic of Vietnam. He was awarded the Combat Action Ribbon. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office. The Board remanded this issue in March 2019 and most recently in July 2020 to the RO for additional development. There has now been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service-connected. 38 C.F.R. § 3.310(b). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a back disability, to include as due to service-connected disease or injury The Veteran contends that he is entitled to service connection for a back disability. He believes his back disability is connected to his service as a mortar man while stationed in the Republic of Vietnam and jumping off helicopters with his backpack and rifle. He has also reported during his training, he would frequently have to help to carry his fellow soldiers. Alternatively, the Veteran contends that his back disability is secondary to his service-connected bilateral lower extremity diabetic neuropathy. The Veteran’s DD Form 214 shows that he received the Combat Action Ribbon, indicating that he engaged in combat. The Veteran’s report of experiencing back pain after jumping out of a hovering helicopter and carrying a heavy backpack would be consistent with the nature and circumstance of his service. See 38 U.S.C. § 1154(b). The Veteran service treatment records (STRs) are associated with the claims file. There is no evidence he had complaints of or treatment for back pain. His spine was determined to be normal at his December 1972 separation examination. The Veteran underwent a private physical examination in February 1997. He did not report any back pain and examination of the spine was normal. May 1998 private treatment records reflect that the Veteran received treatment after he injured his back slipping out of a chair two weeks prior. Diagnostic testing revealed mild degenerative changes. He received treatment for his low back and left sciatica in April 2000, and corresponding diagnostic testing revealed moderate central spinal stenosis, “due to congenitally short pedicles” and degenerative changes. The Veteran underwent a private left L4-5 discectomy in July 2000. There was a report of “previous” back pain consistent with the treatment in 1998 but no mention of a report by the Veteran of pain since service in Vietnam in either treatment encounter. During an October 2003 VA examination, the Veteran denied any muscle pain and told the examiner that he had no back complaints since his discectomy. During January 2004 VA treatment, the Veteran denied pain but did raise concerns about pain to the back of his upper legs following exercise. He did not report back pain. A January 2006 VA mental health examination revealed that the Veteran worked for 22 years with the water authority, initially as a meter reader, and then as a manager. Following his retirement, he worked as a handyman, and then served as Vice Mayor and Mayor of his village. March 2009 VA treatment records reflect that the Veteran reported low back pain after carrying heavy objects a week prior. During July 2010 VA treatment, the Veteran reported intermittent back pain, which he attributed to his service. A corresponding note reflects that he was assessed for chronic low back pain with “mechanical etiology.” The Veteran filed a claim for compensation for a back disability in August 2011. During May 2012 VA treatment, the Veteran reported that he exacerbated his back pain following a month of carpentry work. He reported back pain since his separation from service. VA treatment records reflect consistent treatment for back pain from this time forward. In December 2013 correspondence, the Veteran reported that his back problems were due to in-service helicopter jumps. In July 2015 correspondence, the Veteran stated that he believed his back condition was connected to his leg disabilities. As mentioned above, the Veteran is service connected for bilateral lower extremity diabetic neuropathy. The Veteran was provided with a VA examination and medical opinion in October 2015. The Veteran told the examiner that in 2000 he slipped on wet pavement while wearing flip-flops and had to undergo a laminectomy. He stated that he believed his back pain originally began during his service, following helicopter jumps with his backpack and rifle. He also reported having to frequently carry his comrades. The examiner diagnosed the Veteran with degenerative arthritis of the spine. The examiner determined that the Veteran’s claimed back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there was no evidence of back pain in service or until 25 years after service. The examiner noted that most of the Veteran’s back pain history followed a slip and fall incident unrelated to service. A VA examination and opinion was obtained in October 2019. The Veteran reported back pain consistently from separation. Following a review of the claims file, the examiner concluded that the Veteran’s back disability was less likely than not related to service. She found the normal February 1997 spine examination to be highly persuasive, as well as the lack of any reported back pain in service. The examiner emphasized that the Veteran did not develop invertebral disc syndrome (IVDS) until after his fall in 2000. An additional opinion was obtained in July 2020. Following a review of the claims file, the examiner concluded that the Veteran’s back disability was not caused or aggravated by his service-connected bilateral lower extremity neuropathy. She explained that the Veteran’s back disability involves the anatomy of the lumbosacral nerve roots. The causes of the back disability may include displacement and herniation of the discs, narrowing of the spinal canal, as well as compression of the lumbosacral nerve roots. The examiner stated that the most common causes of back disability and IVDS include mechanical and degenerative changes in the spine. In contrast, the pathophysiology of lower extremity peripheral neuropathy associated with diabetes involves nerve fibers in the toes and feet. The loss of sensation starts in the toes and moves upward to the feet and then can progress up the lower part of the leg. The treatment for diabetic neuropathy is aimed at improved management of the diabetes to prevent further damage to the peripheral nerves. She explained that improved management of the Veteran’s blood sugar would have no effect on his back disability. Therefore, the etiology of the back disability is related to a different nerve distribution than the peripheral neuropathy associated with the diabetes. The examiner emphasized that the two conditions were separate entities and concluded that the Veteran’s back disability is not aggravated by or related to or proximately due to the service-connected bilateral lower extremity neuropathy, which is associated with the diabetes. At the outset, the Board notes that none of the STRs reflect treatment for or complaints of any back pain or any sustained injuries, and the Veteran’s separation examination reveals that his spine was normal and there were no musculoskeletal defects noted. This was an opportunity to report any injuries and residual pain or loss of function. Nevertheless, as discussed above, the Veteran received the combat action ribbon indicating that he engaged in combat. The Veteran’s DD-214 further indicates that his specialty was mortar man. The Board acknowledges that the Veteran’s report of jumping out a helicopter and carrying a heavy backpack would be consistent with the nature and circumstance of his service, which is consistent with his service in Vietnam. 38 U.S.C. § 1154(b). Although the Board accepts the Veteran’s statements regarding an in-service activities, the Veteran must still show that the in-service incidents caused traumatic residuals and that the current disabilities were caused by that trauma. In this regard, the Board finds the weight of competent and credible evidence is against there being a relationship between the two. The record reflects that the Veteran did not report any symptoms until around 1998, although there were opportunities to report any chronic manifestations for evaluation at earlier times. The Board finds the Veteran’s lack of reporting of the onset and continuity of chronic back problems since service during medical treatment for post-service injuries to be highly probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Reporting of a long history of chronic pain since service would have been important to his treatment after the post-service accidents. He did not report back problems during his discharge physical examination or on many occasions after service when seeking care for more recent injuries or strains. Therefore, the Board assigns low probative weight to the lay evidence of continuity since service. The Board also affords the three VA opinions significant probative value. The October 2015 VA examiner specifically mentioned consideration of the Veteran’s reported in-service events. He provided sufficient rationale in his conclusion that the Veteran’s current back problems were unrelated to the in-service events. The examiner instead found the 2000 fall, in which the Veteran reported needing surgery to recover, to be significant. Furthermore, the October 2019 VA examiner pointed to the normal spine examination during February 1997 private treatment as convincing evidence of why the Veteran’s current back condition was unrelated to service. In regard to secondary service connection, the July 2020 VA examiner went into great detail explaining the etiology of the Veteran’s back disability and his lower extremity neuropathy. She thoroughly explained why the two conditions were unrelated and that the back condition was affirmatively not caused or aggravated by his leg disabilities. As to the Veteran’s contentions that his current back condition is related to in-service physical trauma, he certainly can attest to factual matters of which he has first-hand knowledge, such as experiencing pain, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In this case however, the competent evidence of record does not reflect a back condition until more than 25 years following discharge when there were opportunities to do so. Additionally, given the Veteran’s lack of demonstrated medical expertise and the complexity of linking a particular back condition to incidents occurring in service, the Board concludes that in this case the Veteran’s statements regarding any such link between the in-service jumps and heavy wear and tear, and a current back disability are significantly less probative than the conclusion of the VA medical examiners. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, there is no evidence that the Veteran’s back arthritis manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease. This is supported by the February 1997 private physical, which determined that his spine was normal. In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107(b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.