Citation Nr: 21014449 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-44 425 DATE: March 12, 2021 ORDER Service connection for a back disability, to include degenerative arthritis of the spine, is denied. REMANDED Entitlement to an evaluation in excess of 20 percent for a service-connected right knee disability is remanded. Entitlement to an evaluation in excess of 20 percent for a service-connected left knee disability is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s current back disability is not secondary to service-connected disabilities and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back injury are not met. 38U.S.C. §§1110, 1131, 5107; 38C.F.R. §§3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1973to January 1979, with additional service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2020 decision, the Board denied service connection for a back disability, increased evaluations for bilateral knee disabilities, and a TDIU. The Veteran appealed the March 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 joint motion to the Court, the parties (the Veteran and the Secretary of VA) requested that the Board decision be vacated, and the issues above be remanded. In an August 2020 Court order, the Joint Motion was granted, the Board's March 2020 decision was vacated as to the issues of service connection for a back disability, increased evaluations for bilateral knee disabilities, and a TDIU and the issues were remanded. The case has subsequently returned to the Board. 1. Service Connection for a Back Disability. The Veteran contends that service connection is warranted for a current back disability. Specifically, the Veteran reports that while serving in the National Guard in 1988, his back was injured when a metal desk fell on him. The record includes sworn statements from the Veteran and a witness regarding the incident. Additionally, the Veteran contends that following his 1988 back injury was aggravated by a 1993 motor vehicle accident. The Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the spine, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of degenerative arthritis of the spine began during service, is otherwise related to an in-service injury, event, or disease, or had its onset within one year of separation from active military service. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24) (2016); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). The Veteran has arthritis, which is a chronic disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation are inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010); see also Hill v. McDonald, 28 Vet. App. 243, 255 (2016) (holding that if a claimant submits documentation that, together with the rest of the record, evidences both the baseline severity of the preexisting condition prior to the period of ACDUTRA and an increase in disability during a period of ACDUTRA, the claimant may take advantage of the presumption of aggravation). Here, while 38 C.F.R. § 3.303(b) applies to the Veteran’s active period of service from February 1973 to January 1979 it does not apply to the September 1988 back injury that the claim is based on. Specifically, the record supports, and the Veteran confirms, that the September 1988 injury occurred while he was on ACDUTRA and therefore, 38 C.F.R. § 3.303(b) does not apply. The Veteran does not contend, and the record does not support, that any back injury was incurred during his active period of service or that a pre-existing injury was aggravated by the September 1988 back injury. Rather, the Veteran has consistently asserted that the September 1988 injury was the origin of the current back injury which occurred on ACDUTRA and therefore 38 C.F.R. § 3.303(b) does not apply. Turning to the evidence, an emergency treatment records from September 1988 indicate the Veteran was treated for a back injury incurred while moving furniture. There are no other notations regarding complaints of, treatment for, or diagnoses of a back disability in the service treatment records. In May 1992, the Veteran was treated for back pain that worsened with walking and bending. Though there are no spine images associated with this medical record, the Veteran was diagnosed with degenerative joint disease (DJD) of the spine. The Veteran sought treatment again in August 1992 due to twisting his right knee and back. He was assessed to have mild muscle tenderness and diagnosed with a muscle strain. A June 2003 VA radiology report shows the Veteran’s lumbar spine was normal. Specifically, there was no evidence of fracture or dislocation and the intervertebral disk space was well maintained. In August 2012, the Veteran sought treatment due to complaints of lower back pain. Based on an August 2012 radiology report, the Veteran was diagnosed with degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS). The Veteran was afforded a VA examination in September 2016. He reported being hit in the back by a large desk while in the National Guard in 1988, and that he currently has lower back pain. He also stated that at times, his back goes out and he is unable to get out of bed. The VA examiner noted the Veteran’s 2012 diagnoses of DDD and IVDS and opined that the Veteran’s back condition is less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale provided was that the Veteran was treated in September 1988 for a back injury, but there is no medical evidence of ongoing treatment. The VA examiner stated that following service, the Veteran participated on a college football team, 2003 X-rays of the spine were normal, and it was not until decades after service separation in 2012 that the Veteran was found to have degenerative changes of the lumbar spine. Given the Veteran’s age and his body mass index, which placed him in the obese category, the VA examiner concluded that the Veteran’s degenerative changes of the spine were due to the aging process and strain on the spine due to his weight. The VA examiner also opined that the Veteran’s back disability was less likely than not proximately due to, the result of, or aggravated by the Veteran’s service-connected bilateral knee and feet conditions. The rationale provided was that aside from a leg length discrepancy, which the Veteran did not have, there was no credible medical or scientific literature that supported an injury to the knees or feet that would result in a back condition. An addendum VA medical opinion was obtained to discuss the Veteran’s assertions that a 1993 motor vehicle accident aggravated the back injury sustained in 1988. Following a review of the medical evidence, the VA examiner opined that the 1993 accident did not aggravate the Veteran’s back condition. In support of the opinion, the VA examiner noted that the Veteran did not require ongoing treatment following the 1988 injury, and there is no evidence of a functional impact caused by the 1988 injury. The VA examiner stated that even after the 1993 accident, there is no evidence of ongoing treatment for a back condition, and 2003 X-rays were normal. In April 2018, an additional VA medical opinion was obtained to address the Veteran’s medical records showing he sought treatment for his back in 1992 and whether the 1992 complaints of pain were related to the 1988 injury. The VA examiner reviewed the Veteran’s medical records and opined that the Veteran’s back condition was less likely than not incurred in or caused by the claimed in-service injury. He specifically noted the September 1988 diagnosis of a soft tissue muscle injury, and the May 1992 treatment for subjective back pain, during which the Veteran had a normal physical examination. The VA examiner stated that although the Veteran was diagnosed with DJD in 1992, the diagnosis was made without confirmatory X-rays. Further, 2003 X-rays showing the spine was normal contradict the 1992 diagnosis, indicating the 1992 DJD diagnosis was in error. Although the Veteran has at least asserted that the current back disability is causally related to service, under the facts of this case, as a lay person, he does not have the requisite medical expertise to be able to render a competent opinion regarding the cause of the complex back disability. The etiology of the back disability in question is a medical question dealing with the origin and progression of the Veteran's musculoskeletal system, and degenerative arthritis of the lumbar spine, is diagnosed primarily on objective clinical findings, including X-ray findings and specialized testing. Thus, while the Veteran is competent to relate some symptoms of a back disability that he experienced at any time, including pain, under the specific facts of this case he is not competent to opine on whether there is a link between the current, specifically diagnosed back disability and service because such an opinion regarding causation requires specific medical knowledge and training. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is too "medically complex" for lay diagnosis); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay Appellant claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"). Furthermore, as stated above, the September 2016 and April 2018 VA examiners opined that it was less likely that the Veteran’s disability was attributable to the in-service injury, or caused or aggravated by any service-connected disabilities, and provided a sound rationale for the medical opinions that was consistent with the evidence and the Board's findings in this case. Thus, the weight of the evidence is against a finding that a back disability was incurred in or otherwise caused by the September 1988 injury incurred during ACDUTRA service. To the extent to which the Veteran alleges continuity of symptomatology, as noted above, this theory only applies to the Veteran’s first period of service. The Veteran has not alleged and the record does not support that the Veteran had a chronic back injury during this first period of service. In fact, the August 1978 examination conducted in connection with his separation from this period of service did not describe any defects or diagnoses of the back. A June 1978 dental health questionnaire reflects the Veteran denied any history of arthritis. The Veteran denied any history of recurrent back pain on a 1985 report of medical history and the corresponding examination described the spine as normal. As such, the record does not support that there have been continuous symptoms since the Veteran’s first period of service. To the extent to which the Veteran reports continuous symptoms since his injury during ACDUTRA, while he is competent to describe such symptoms, as explained above the regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation are inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010); see also Hill v. McDonald, 28 Vet. App. 243, 255 (2016). After review of the lay and medical evidence, the Board finds the Appellant's current back disability was not the result of any injury sustained on any period of active service, ACDUTRA, or INACDUTRA, including the September 1988 injury. 38 U.S.C. § 101(22-24). The weight of the competent and credible evidence demonstrates no relationship between the current back disability and the September 1988 injury. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a back disability on a direct or secondary basis and the appeal must be denied. Because the preponderance of the evidence is against the appeal, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The Remaining Claims are Remanded. In the July 2020 JMR, the paries agreed that VA examinations conducted in November 2009 and September 2016 were inadequate. Specifically, the parties agreed that both examinations failed to provide adequate analysis of functional loss during a flare-up under Sharp. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). As such, a remand for a current examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The claim for entitlement to a TDIU is inextricably intertwined with the issues of entitlement to increased evaluations for the service-connected bilateral knees, which are being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Associate any VA treatment records since March 2019 with the Veteran's claims folder. 2. Schedule the Veteran for an examination of the current severity of his bilateral knee disabilities. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments of the knees and discuss the effect of the Veteran's knees on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.