Citation Nr: 21014490 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 20-21 681 DATE: March 12, 2021 ORDER Entitlement to service connection for central canal stenosis (L2-L3) (a low back disorder) is denied. Entitlement to service connection for cirrhosis of the liver is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. The Veteran’s low back disability, to include arthritis, did not manifest during service or within one year of separation from service, and is not shown to be related to service. 2. The Veteran’s cirrhosis of the liver did not manifest during service or within one year of separation from service, and is not shown to be related to service. 3. The Veteran’s COPD is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability, to include arthritis, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for cirrhosis of the liver have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to August 1974, and from November 1980 to March 1981. In August 2020, the Board remanded the appeal for further development, to include obtaining the Veteran’s service treatment records, to specifically include those from Eglin Air Force Base (AFB). However, the Board notes that the Veteran’s service treatment records were already of record, and including those from Eglin AFB. Service Connection The Veteran is seeking service connection for a low back disorder, cirrhosis of the liver and COPD, which he claims is due to medication taken in service for syphilis. The Board shall analyze these disorders together because the evidence concerning the disabilities are located in the same medical treatment records and lay statements. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be established on a presumptive basis for the chronic diseases listed in 38 C.F.R. § 3.309 (a). The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases,” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, 38 C.F.R. § 3.303 (b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; 38 C.F.R. § 3.303 (b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” Id. (observing that a claim for a chronic disease “benefits from presumptive service connection... or service connection via continuity of symptomatology”). Because the Veteran has been diagnosed with arthritis in his lumbar spine and cirrhosis of the liver, and these disorders are defined as chronic in 38 C.F.R. § 3.309 (a), the provisions of subsection 3.303(b) for chronic diseases apply; thus, this claims may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-39. Where a claimant served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for chronic disorders may be established on a presumptive basis by showing that the 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. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307 (d). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Here, the Veteran’s service treatment records are negative for symptoms relating to a low back disorder, cirrhosis of the liver or COPD, and syphilis, his claimed in-service event. However, service treatment records show he was treated with penicillin and Benemid for presumptive gonorrhea in August 1972. Post-service records indicate that the Veteran was diagnosed with COPD and cirrhosis of the liver in the 1990s and a low back disability in August 2011. As an initial matter, regarding the Veteran’s lumbar spine disorder and cirrhosis of the liver, he has not alleged continuity of symptomatology, and such is not supported by the record. Furthermore, there is no evidence that the Veteran’s lumbar spine disorder and cirrhosis of the liver had their onset within one year of separation from service. Thus, service connection based on continuity of symptomatology or on a presumptive basis is not warranted. The Board’s August 2020 remand directed that the Veteran be scheduled for VA etiological examinations and opinions regarding his claimed disorders if his service records showed treatment for syphilis. As noted above, service treatment records were negative for such; however, the Agency of Original Jurisdiction proceeded with obtaining the examinations. In November 2020, the Veteran underwent VA examinations for his claimed disorders. The examiner was asked to opine whether any of the claimed disorders were related to medication received in service for syphilis. The examiner noted the Veteran’s pertinent medical history, to include that service treatment records specifically showed that he was negative for syphilis in May 1974 and in 1980. Additionally, the Veteran had a negative antibody test for syphilis in May 2018, indicating that he has never had syphilis. However, the examiner noted that the Veteran was treated with penicillin and Benemid for presumptive gonorrhea in August 1972. He explained that the Veteran’s claimed disorders were less likely than not related to said medications in service, stating that the course of medication prescribed was standard. Regarding cirrhosis, the examiner stated that only very rarely does a first-generation penicillin cause liver toxicity and even then, it is generally mild. He further explained that any such reaction is usually seen within six months at the latest, and that more serious reactions are usually accompanied by a Stevens Johnson reaction, which is not documented in the record. With respect to a low back disorder and COPD, the examiner stated that penicillin was not listed as a cause for either disorder. The Board finds the November 2020 VA opinion highly probative, as it was predicated upon a review of the Veteran’s claims file, to include his service records, medical history and lay statements, and contains a clear conclusion connected to supporting data by a reasoned medical explanation. Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no medical opinion to the contrary. The Board has carefully reviewed and considered the Veteran’s statements regarding his claims for service connection. The Board also acknowledges that the Veteran, in advancing this appeal, believes in the merits of this appeal. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the claims are the most probative evidence with regard to evaluating the disabilities on appeal. In addition, where applicable, VA and private treatment records, documenting symptomatology which are consistent with the findings in the VA examinations, have also been considered. Accordingly, as the preponderance of the evidence is against the claims, the Board finds that service connection for a low back disorder, cirrhosis of the liver and COPD must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.