Citation Nr: 21021068 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 10-13 736 DATE: April 9, 2021 ORDER Entitlement to service connection for a thoracolumbar spine disability is denied. REMANDED Entitlement to service connection for Paget’s disease, to include as secondary to exposure to herbicide agents or ionizing radiation, is remanded. FINDING OF FACT The evidence shows the Veteran’s degenerative joint disease of the thoracolumbar spine is not related to an in-service event or injury. CONCLUSION OF LAW The criteria for service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 through July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board when they were denied in a September 2017 Board decision. The Veteran appealed the denial of his claims to the Court of Appeals of Veterans Claims (Court), and in a March 2019 memorandum decision, the Court vacated the Board’s September 2017 decision and remanded for compliance with the instructions contained therein. The Board remanded these matters in November 2019 for further development. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lumbar spine disability The Veteran contends he has a thoracolumbar spine disability etiologically linked to his service. Service treatment records do not indicate any complaints of a back injury or back pain during service and his separation examination was normal. The Veteran’s DD-214 noted he received the Vietnam Service Medal with a Bronze Star. In April 2017, a letter written by his fiduciary claimed he reported back pain while in service and received shots, but the treatments were not recorded because they were in a war zone. As there is evidence the Veteran participated in combat activities while in Vietnam, an in-service event or injury causing back pain is conceded. VA treatment records indicate the Veteran had an x-ray of his spine conducted in October 1998 showing no significant abnormalities. In November 1998, he reported having lumbar spine pain for approximately six months with no associated traumatic event. The Veteran reported back pain in April 1999 and then again in November 1999, stating he had it for approximately a week. There was no known injury associated with his back pain. However, later in November 1999, the Veteran reported his back pain had spontaneously improved. The Veteran continued to complain of back pain and was diagnosed with chronic back pain in August 2002. A bone scan conducted in June 2005 showed an increased abnormal uptake in the Veteran’s T9 or T8, suggestive of worsening degenerative joint disease and a possible healed compression. In July 2005, x-rays indicated he had degenerative joint disease of the spine. A VA treatment record from July 2009 noted the Veteran had chronic low back pain since his non-traumatic hip fracture. In November 2014, a VA physician noted the Veteran’s back pain may be related to his Paget’s disease. Further, in September 2015, a VA physician noted that the Veteran’s back pain was due to a past compression fracture of the T8 and T9 and his Paget’s disease. In May 2016, the Veteran was afforded a VA examination to determine the etiology of his thoracolumbar spine disability. The examiner noted that the Veteran had trouble with memory and was limited in giving his history; most of the history of his thoracolumbar spine condition was compiled from his medical records. The examiner noted the Veteran did not report back pain until 1999, and he was not diagnosed with degenerative disc disease until 2005. The examiner opined it was less likely than not that the Veteran’s current thoracolumbar spine disability was etiologically related to his service. However, the May 2016 VA examiner’s opinion did not consider the Veteran’s conceded in-service back injury, thus was not an adequate opinion. VA provided an addendum back opinion in July 2020 after a review of available records. The July 2020 examiner stated the existing medical evidence provided sufficient information to prepare an opinion and an examination would likely provide no additional relevant evidence. The examiner stated the chart was reviewed, as was 2016 VA back examination. At the time of the 2016 examination, the Veteran was unable to give any history of back pain and its onset and gave no history of symptoms during service. Service treatment records were again reviewed, and there is no evidence of any symptoms of or treatment for back pain. Veteran supplemental statement dated March 2017, submitted by M.A., the Veteran’s appointed payee custodian was reviewed. Veteran is a confirmed combat Veteran and claims back pain and treatment occurred during combat, per this request for addendum. It is this examiner’s opinion that his current back symptoms are unrelated to his time in service. He claims he injured his back in combat service, and while there is no evidence from that time, it is conceded that this statement is consistent with hardships and circumstances of service. That being acknowledged, the first documentation of low back pain found in all records reviewed is October 1998 when he was seen for low back pain in the emergency department. He had a normal L-S spine x-ray. A follow-up note in November 1998 documents low back pain for six months. Onset is approximately 30 plus years after he separated from service. There is no evidence to support his current lumbar spine arthritis is related to service. X-ray from 1998 was normal, 30 plus years after service. The Board finds this opinion probative, as the examiner opined, after an extensive review of the medical record, that the Veteran’s current degenerative disc disease was not related to his service, to include his conceded in-service injury during combat causing back pain. The Board notes that the Veteran and his family members have stated he began receiving treatment through VA as early as 1967. Several requests were made in 2012 and 2014 to locate the Veteran’s medical records from 1967. Archived records were received in May 2014. However, they only covered the time period of October 1998 through April 2004. It was determined that the earlier records were unavailable for review. The Board has considered whether the Veteran is entitled to service connection for degenerative joint disease of the lumbar spine as a “chronic disease.” See 38 C.F.R. § 3.303 (b). Arthritis is included in the list of “chronic” diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with degenerative joint disease of the spine in 2005, over 30 years after his separation from service. While the Veteran has argued he was receiving treatment for his back from as early as 1967, the record does not show that he was diagnosed with degenerative joint disease of the lumbar spine or any other “chronic” disease listed under 38 C.F.R. § 3.309 (a) during service or within one year of separation from service. The Board points to the x-ray of his spine conducted in October 1998 showing no significant abnormalities. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. The prolonged period from separation from service until 1998 without complaints and/or treatments for lumbar spine pain is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). The Board acknowledges the Veteran’s reports of continuous lumbar spine pain since service but assigns more probative weight to the Veteran’s contemporaneous statement in November 1998, when he reported having lumbar spine pain for approximately six months with no associated traumatic event. The only evidence indicating an association between the current lumbar spine disability and service are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of a lumbar spine disability is not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay testimony is not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current lumbar spine disability had its onset during active duty does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of the lumbar spine disability. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). REASONS FOR REMAND Paget’s disease The Veteran seeks entitlement to service connection for Paget’s disease, to include as due to exposure to ionizing radiation or herbicide agents in service. The Veteran was provided a VA addendum opinion as to his Paget’s disease in December 2020. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The December 2020 VA examiner provided an addendum opinion stating that Paget’s disease, a common condition, is a chronic bone disease in which the bone remodeling process is abnormal. The cause of Paget’s disease of the bone is unknown, though there may be a genetic component. There is no available evidence showing causal relationship between Agent Orange exposure and Paget’s disease of the bone. The December 2020 VA examiners conclusion that the Veteran’s Paget’s disease is not related to service because there is no available evidence showing causal relationship between Agent Orange exposure and Paget’s disease of the bone does not contain sufficient rationale. Because the examiner merely provides a general statement without providing analysis specific to the Veteran’s case and discussing individual risk factors, the opinion is inadequate for adjudication purposes. See Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009)(holding that “whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner may affect the adequacy of a medical opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“The Board must be able to conclude that a medical expert has applied medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.”). The matter is REMANDED for the following action: Obtain an addendum opinion regarding whether the Paget’s disease is at least as likely as not related to the Veteran’s in-service exposure to herbicide agents. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.