Citation Nr: 21021816 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-60 117 DATE: April 14, 2021 ORDER Service connection for degenerative arthritis of the spine with intervertebral disc syndrome (back disability) is denied. Service connection for left lower extremity lumbar radiculopathy associated with a back disability is denied. Service connection for irritable bowel syndrome (IBS) is denied. FINDINGS OF FACT 1. It is less likely than not, that the Veteran’s back disability was incurred in or otherwise caused by his active military service. 2. The Veteran’s left lower extremity radiculopathy is a direct result of his back disability. 3. The evidence does not support a finding that the Veteran’s IBS was incurred in or otherwise related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). 2. The criteria for service connection for left lower extremity lumbar radiculopathy associated with a back disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310(a). 3. The criteria for service connection for IBS have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1987 to July 1990. The matter is on appeal before the Board from a January 2017 rating decision. The Veteran provided testimony at a Board hearing before the undersigned Veterans Law Judge in February 2021. The Board notes that during the February 2021 Board hearing, the Veteran’s representative commented that it did not appear that the Veteran’s record contained all of the private medical records from a Dr. T., the Veteran’s primary care physician. After a thorough review of the Veteran’s record, it appears that all private medical records from a Dr. T., and the associated practice, are accounted for and associated with the Veteran’s record. While the Veteran in the Board hearing reported that he began seeing Dr. T. in 1992 for his issues, there is a letter associated with the Veteran’s file from another doctor associated with the same practice, in which it is reported that the Veteran had established care with the practice in 1995. The Veteran’s private treatment records from the medical practice that includes Dr. T, his primary care physician, begin in 1995. In addition, there are emergency room medical records associated with the Veteran’s file that begin in 1992. Thus, all pertinent records appear to be associated with the Veteran’s file, and at this time a remand to obtain medical records is not required. Moreover, at the Board hearing it was recommended that the Veteran make effort’s to speak with Dr. T. about any outstanding records and about a medical opinion to address the issues on appeal. Unfortunately, no opinions were submitted, and there is no further indication that private treatment records existed that had not been associated with the claims file. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). Service connection may also be established with certain chronic diseases, based upon a legal presumption, which occurs by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, service connection may be established under 38 C.F.R. § 3.303(b), when a symptom or symptoms of a chronic disease are noted in service, or within a year of the date of separation from service, and when chronicity is established through a continuity of symptomatology after service. The continuity of symptomatology provision is an alternative method to establishing service connection for the specific chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Back Disability and Left Lower Extremity Radiculopathy The Veteran asserts that he has a back disability that is related to his active military service. The Veteran also asserts that he has left lower extremity radiculopathy that is related to his back disability. At the Board hearing in February 2021, the Veteran reported that he was in a motor vehicle accident while stationed in Germany on active duty. After the accident, he described feeling as though his left side was wet, as if it was bleeding on the inside, and that his lower back would be bothering him. He relayed that his back continued to bother him, and that he had complained of back pain while in the service, however, his complaints had mainly been to a medic while he was in the field. He reported that within two years of his separation from service, he began receiving treatment for his back from a private chiropractor in 1992. Additionally, he noted that he had undergone two back surgeries, one in 2013 and one in 2015. It was reiterated by the Veteran’s representative during the hearing, that the claim for service connection for the left lower extremity radiculopathy was secondary to the Veteran’s back disability. A review of the Veteran’s service treatment records (STRs) reflects a notation from October 1987, that the Veteran had been in a motor vehicle accident. X-rays were noted to be negative, and a provisional diagnosis of lumbar spine sprain was provided. An additional record reflects a report of lower back pain ongoing for two to three weeks, however, it is not dated. An assessment of strain right L-5 muscle was provided. In June 1989, the Veteran reported that he fell while playing basketball and hurt his back and elbows. An assessment of soft tissue injury to L-5 muscles was noted. A complaint of lower back pain over three days was noted in January 1990. The Veteran had limited range of motion, and pain on palpation. There was no pain into the legs. No assessment was provided, but the Veteran was reported to have a history of lower back pain. On a Master Problem List, the Veteran is noted to have temporary (minor) problems of strain L-5 muscle from January 1989, and soft tissue injury of L-5 muscle from June 1989. At the Veteran’s May 1990 separation physical, the Veteran reported recurrent back pain. He reported having been involved in an automobile accident while stationed in Germany and injured his back. He also reported injuring his back while driving a Gama Goat. In relation to the Veteran’s report of lower back pain, the examiner provided a notation of mechanical lower back pain, no GU or radiculopathy symptoms. The Veteran’s private treatment records reflect complaints of lower back pain as well as two surgeries on his lower back. His private records show that he was first seen in the emergency room in June 1992 due to a pallet hitting him in his lower lumbar area. The Veteran reported pain in the lumbar area bilaterally, without any numbness, tingling, or weakness in his arms or legs. He denied any other injuries. He was assessed with a contusion of the lumbar spine with muscle spasm, and told to report to his employee health the following day. Spine imaging was normal. He was seen again in the emergency room in January 1993, and was assessed with back spasm L3 L4 disc. A letter from a private orthopedist dated January 1993, shows that the Veteran was being treated for a back injury. Additionally, the letter noted that the Veteran’s restrictions included no lifting over 20 pounds and no repetitive lifting or bending at work. Another letter was submitted by the private orthopedist in February 1993, in which it was noted that the Veteran was also being treated for radicular syndrome, and as such he had been unable to attend work for a portion of February 1993. In September 1993, the Veteran was seen again in the emergency room, and assessed with chronic back pain. The Veteran was next seen by his private physician, Dr. T., in November 2004 for a complaint of lower back pain. The Veteran’s physician noted that there were no complaints of back pains in the Veteran’s history. A provisional diagnosis of lower back pain was noted. In June 2013 the Veteran underwent a surgery on his back for lumbar stenosis. In April 2015, the Veteran reported being in a motor vehicle crash. A complaint of lower back pain with pain radiating into the bilateral legs was noted. The Veteran underwent another back surgery in June 2015 for lumbar stenosis. There is a note in the Veteran’s record dated October 2016, from a physician associated with the practice that the Veteran’s primary care physician, Dr. T., is associated with, in which it is reported that the Veteran had asked that a note be provided indicating how long the Veteran had been seen for low back pain and lumbar radiculopathy. It was reported that the Veteran had established care with the practice in March 1995, and that he had been seen for low back pain since 2004, and lumbar radiculopathy since June 2013. The Veteran underwent a VA examination in September 2016, at which the examiner reported the Veteran to have diagnoses of lumbosacral strain, degenerative arthritis of the spine, and intervertebral disc syndrome. The Veteran was also noted to have a moderate left lower extremity radiculopathy. The examiner reported that the Veteran’s left lower extremity radiculopathy was a direct result of the Veteran’s degenerative disc disease of the lumbar spine. However, the examiner found that the Veteran’s back disability was less likely than not (less than 50 percent probability) incurred in or caused by his active military service. The examiner acknowledged that the Veteran’s STRs were positive for injuries (motor vehicle accident and gamma goat incidents), and that the Veteran had undergone multiple evaluations for thoracic and lumbar strains during his active service. The May 1990 discharge physical containing a notation of mechanical lower back pain, no GU or radiculopathy symptoms, was noted. A 2013 MRI that was positive for degenerative disc disease of the lumbar spine and spinal stenosis was also documented. However, the examiner relayed that there was no credible medical evidence to support that the in service injuries of the thoracic and lumbar sprain are related to the Veteran’s degenerative disc disease of the lumbosacral spine and spinal stenosis found on the 2013 lumbar spine MRI. The examiner noted that the Veteran had worked at a Good Year plant performing manual labor for approximately 19 years, and that the Veteran’s back disability was likely due to his occupation since discharge from active duty. Consideration is given to the Veteran’s contentions that his claimed back disability was incurred in or caused by his military service, as well as his contention that his claimed left lower extremity radiculopathy is secondary to his back disability. While lay persons are competent to provide opinions pertaining to certain medical issues, the etiology of both a back disability and a left lower extremity radiculopathy, as is specific to this case, is outside the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran is competent to report his symptoms of back and leg pain. However, no probative value shall be assigned to his contentions pertaining to the etiology of his back disability or his left lower extremity radiculopathy, and while a medical opinion has been presented linking the Veteran’s left lower extremity radiculopathy to his back disability, no medical opinions have been presented linking the Veteran’s back disability to has active military service. To the extent that the Veteran has reported being treated for his back since service, the fact remains that there was no discussion of a post-service service back injury that sent the Veteran to the emergency room at his Board hearing. Moreover, while the Veteran reported getting treated for his back by Dr. T. in the early 1990s, the doctor’s office indicated that it did not begin treating him for back problems until 2004. As such, any reports of continuity of back symptomatology from service are not found to be credible given the discrepancies in reporting the onset of treatment and the failure to disclose the post service back injury. Based upon the foregoing, service connection for a back disability is not warranted, and neither is service connection for a left lower extremity radiculopathy associated with a back disability warranted. While the Veteran’s STRs do reflect that the Veteran was in a motor vehicle accident, contain complaints of lower back pain, and note assessments of soft tissue injury, muscle sprain, and mechanical back pain, the Veteran’s STRs do not indicate chronicity of a back disability. Rather, they actually contain a Master Problem List, where the Veteran is noted to have temporary (minor) problems of strain L-5 muscle from January 1989, and soft tissue injury of L-5 muscle from June 1989. In addition, the Board notes that the Veteran’s STRs do not contain complaints of a left lower extremity radiculopathy. Rather, in conjunction with some of the lower back pain complaints, they contain notations of no radicular symptoms or pain. The Veteran’s private treatment records post-service show that he was first seen for complaints of lower back pain in 1992, after he was hit in the back by a pallet at work. Spine imaging results at that time were normal. A private physician’s letter in January 1993 reflected that he was receiving treatment for a back injury, and an additional letter from February 1993 reflected that he was receiving treatment for radicular syndrome. These complaints and treatment occurred after a post-service injury, as well as almost two years after the Veteran’s separation from active military service. The next complaints of lower back pain occur in 2004, approximately 14 years after the Veteran’s separation from active military service. Radicular symptoms and treatment are next noted in June 2013. As such, continuity of symptomatology is not shown. Additionally, while the September 2016 VA examiner found that the Veteran’s left lower extremity radiculopathy was directly related to his back disability, the examiner also concluded that it is less likely than not that the Veteran’s back disability is related to his active military service. The Board finds probative value in the VA examiner’s opinion. The examiner explained there was no credible medical evidence to support that the Veteran’s in-service injuries of the thoracic and lumbar strain were related to his current back disabilities of degenerative disc disease and spinal stenosis. Rather, the examiner found that the Veteran’s back disability is likely due to his work after his discharge. As such, service connection for a back disability is not warranted. As the Veteran is not service-connected for a back disability, service connection for a left lower extremity radiculopathy is not warranted either. Accordingly, service connection for a back disability is denied, and service connection for a left lower extremity radiculopathy associated with a back disability is denied. IBS The Veteran asserts that he has IBS that is related to his active military service. At the February 2021 Board hearing, the Veteran reported that while he was in the military, he had gone to sick call about diarrhea a few times, however, he had mostly been seen by a medic while in the field. He relayed that during his active service he experienced bowel trouble, alternating between diarrhea and constipation, and that he was getting medications from the medics to counter both. He noted that he had symptoms since his active military service, but that he had not been diagnosed with IBS until his private physician provided a diagnosis in either 1994 or 1995. A review of the Veteran’s STRs does not reflect a diagnosis of IBS, nor do they show any complaints or treatments that may be related to IBS. This includes no complaints of diarrhea or constipation. A review of the Veteran’s private treatment records reflects that the first complaint that contains the symptom of diarrhea occurred in March 1995. The complaint also included vomiting, feeling feverish, and not sleeping. The Veteran was diagnosed with acute gastroenteritis. He was seen in March 2000 for vomiting and diarrhea. In August 2000, he was seen with a complaint of stomach problems over the prior three months. He was noted to sometimes have diarrhea, including several times daily. A provisional diagnosis of chronic diarrhea was noted, under which it was written “infection vs. IBS.” A record from October 2000, notes symptoms for abdominal pain and diarrhea to have been ongoing for two years. A provisional diagnosis of IBS with diarrhea and hematochezia was provided. As noted in the above section, one of the physicians associated with the practice that the Veteran’s primary care physician is associated with, provided a note in October 2016, in which it is noted that the Veteran was first seen for symptoms of IBS in March 2000, and that he was first diagnosed with IBS in August 2000. Consideration is given to the Veteran’s contentions that his claimed IBS was incurred in or caused by his military service. While lay persons are competent to provide opinions pertaining to certain medical issues, the etiology of IBS, as is specific to this case, is outside the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran is competent to report his symptoms of bowel and abdominal issues, such as his diarrhea and constipation. However, no probative value shall be assigned to his contentions pertaining to the etiology of his IBS. Of note, the Veteran asserted that he had been diagnosed with IBS shortly after service, but the private treatment records do not actually show such a diagnosis for approximately a decade after separation. The Board does not believe that the Veteran was attempting to mislead it, but rather he is attempting to reconstruct the course of events that transpired decades earlier. However, the contemporaneous medical evidence appears to be at odds with his assertions and therefore the contemporaneous records are given more weight. The Veteran’s STRs do not contain a diagnosis for IBS, nor do they contain any complaints or treatments that may be related to IBS, such as complaints of diarrhea or constipation. The first complaint in the Veteran’s private treatment records that included the symptom of diarrhea was in March 1995, nearly five years after his separation from active military service. Even then, the Veteran was assessed with acute gastroenteritis. That is, IBS was not diagnosed and the condition was felt to be acute rather than chronic. The Veteran was next seen in March 2000 for complaints of vomiting and diarrhea. A provisional diagnosis of IBS was rendered in October 2000. The Veteran was not diagnosed with IBS until approximately 10 years after his separation from active military service, and while there is a notation of the symptom of diarrhea in 1995, there is only the one notation and it was associated with gastroenteritis. Additionally, the Veteran’s private treatment records do not contain any opinions that link the Veteran’s IBS to his active military service. Accordingly, service connection for IBS is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.