Citation Nr: 21022133 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-39 252 DATE: April 14, 2021 ORDER Entitlement to service connection for a left wrist strain is denied. Entitlement to service connection for a low back disorder is denied. REMANDED Entitlement to service connection for sinusitis, to include allergic rhinitis, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that a left wrist disorder or left wrist symptoms began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that a low back disorder began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left wrist strain are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1989 to January 1994. In December 2018, the Board denied entitlement to service connection for a left wrist disorder, low back disorder, and sinusitis. The Veteran appealed the December 2018 Board decision to the Court of Appeals for Veterans Claims (Court). The Court entered a December 2019 joint motion for partial remand (JMPR) for development of these issues. On return to the Board, these issues were remanded by the Board in an April 2020 decision for further development. The issues have since returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested 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, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2019); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. See Walker, supra; 38 C.F.R. § 3.309(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a left wrist strain is denied. The Veteran asserts that she is entitlement to service connection for a left wrist disorder on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran’s left wrist disorder, or left wrist symptoms, did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. In a January 1992 service treatment record (STR), the Veteran complained of an injury to the left wrist. The Veteran stated she fell onto her left hand and complained of pain. On examination, the medical provider observed the Veteran to have decreased range of motion. The medical provider assessed the Veteran to have a contusion of the left hand/wrist. In a January 1992 STR, the Veteran complained of left wrist pain after a fall. On the October 1993 STR separation examination, the medical provider indicated the Veteran’s upper extremities were normal. On the June 2012 VA wrist examination, the examiner indicated the Veteran has a chronic left wrist strain. The Veteran reported that she injured her left wrist in-service in the 1990s when she fell backwards onto her outstretched hand. The Veteran denied fracture. The Veteran reported intermittent pain since the in-service injury. The examiner remarked that the STRs show a single complaint of left wrist pain in 1992 that was diagnosed simply as a contusion to the wrist and hand. The examiner stated there is no mention of continued left wrist pain in subsequent STRs or at the time of the Veteran’s 1993 separation examination. The examiner also stated there are no post-service records documenting complaints of or treatments for left wrist pain. In a June 2012 VA imaging, the medical provider observed the Veteran’s left wrist to be unremarkable with no fracture, subluxation, or dislocation. In an October 2012 VA treatment letter, the medical provider stated that after review of the Veteran’s records and an evaluation, it is at least as likely as not that the Veteran’s wrist disorder is a continuation of the conditions she experienced in service. On the September 2020 VA wrist examination, the examiner indicated that the Veteran does not have a left wrist disorder. The Veteran stated that she experienced an in-service injury and now has pain with use and pressure of the wrist. The Veteran stated she has full range of motion but has pain with pushing off the wrist. The Veteran stated she has flares of pain with use. The examiner opined that the Veteran’s left wrist complaints are less likely than not caused by service. The examiner reasoned that the Veteran’s left wrist disorder was a self-limiting injury as there were no further wrist complaints or treatments in service and all exams were normal, including but not limited to the Veteran’s October 1993 separation examination. The examiner noted there are no further complaints or treatments for the wrist until 2009, more than 10 years after separation from service, and found that her current symptoms do not rise to the level of causing functional loss or otherwise manifesting in a diagnosable disorder. The examiner concluded there is no continuity of care and no link from the Veteran’s resolved in-service condition and her current left wrist complaints. Based on the foregoing, the Board concludes that the weight of the evidence does not support a finding that the Veteran’s left wrist disorder or left wrist symptoms were manifested in service or to the compensable degree in the first year following her separation from service. Consequently, service connection for a left wrist disorder or left wrist symptoms on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that she has suffered from a left wrist disorder or left wrist symptoms continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The VA treatment records contains an October 2012 VA treatment provider opinion that the Veteran’s left wrist disorder is a continuation of the left wrist injury and treatment in service. However, the Board finds this VA treatment provider opinion to be inadequate as the opinion does not contain a rationale supporting the opinion. Therefore, this opinion is less persuasive than the September 2020 VA examiner’s opinion. The most competent evidence in the record that addresses the relation of the Veteran’s claimed left wrist disorder or left wrist symptoms to service is the September 2020 VA medical opinion, which stated that the Veteran’s left wrist symptoms were not related to service. As the September 2020 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. Further, the Veteran’s own statements relating her left wrist disorder or left wrist symptoms to service are not competent evidence, as she is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether a left wrist contusion or left wrist symptoms, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, left wrist contusion is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a left wrist disorder. Accordingly, it must be denied. 2. Entitlement to service connection for a low back disorder is denied. The Veteran asserts that she is entitled to service connection for a low back disorder on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran’s low back disorder did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. In a February 1992 STR, the Veteran was in a motor vehicle accident and complained of back and leg pain three days after the motor vehicle accident. The Veteran report no prior back problems. The medical provider assessed the Veteran to have mechanical low back pain. In a February 1992 STR, the Veteran was treated for a follow-up for low back pain. The Veteran stated she felt relief after the initial treatment. In a March 1992 STR, the Veteran was seen for follow-up treatment for the low back pain. The Veteran stated that she is feeling better. On the October 1993 STR separation report of medical history, the Veteran made no indication as to whether she experienced recurrent back pain. On examination, the October 1993 separation examination medical provider indicated the Veteran’s spine is normal. In a July 2009 VA treatment record, the Veteran complained of low back pain. The medical provider indicated the Veteran had low back pain secondary to injury in the Army. In July 2009 VA imaging, the medical provider indicated the Veteran has a history of a muscle strain with current chronic low back pain. The medical provider observed the Veteran’s lumbar spine to be unremarkable. In an August 2009 VA treatment record, the Veteran stated she has complained of back pain since 21 years of age. In a March 2010 VA treatment record, the Veteran sought treatment for back pain management. In a May 2011 VA treatment record, the medical provider stated that the Veteran has had radicular low back pain for years. He stated she had occasional flares that are associated with radiation down the left leg. On the June 2012 VA back examination, the examiner indicated the Veteran has chronic low back pain with right lower extremity radiculopathy and intervertebral disc syndrome (IVDS). The Veteran reported that she injured her low back when lifting heavy ammunition in-service in the early 1990s. She stated that she experienced low back pain since the in-service injury. The examiner opined that the Veteran’s low back disorder is less likely than not caused by service. The examiner reasoned that the Veteran was treated for only two acute episodes of low back pain and was diagnosed with mechanical low back pain in 1992 without subsequent documentation of continued low back pain in the last year of her military service, to include at the time of her October 1993 separation examination. The examiner also indicated there are no post-service treatment records documenting any complaints of low back pain in the claims file. In September 2012, a VA medical provider assessed that the Veteran has chronic low back pain with occasional radicular pain flares. The medical provider stated the Veteran was seen at the clinic during active duty in 1992 after a motor vehicle accident. The medical provider stated there was a review of the November 1992 records. In an October 2012 VA treatment letter, the medical provider stated that after review of the Veteran’s records and an evaluation, it is at least as likely as not that the Veteran’s chronic low back disorder is a continuation of the condition she experienced in service. In a February 2020 VA treatment record, the Veteran stated her back pain has been chronic since service. On the September 2020 VA back examination, the examiner indicated the Veteran is diagnosed with a lumbar strain. The Veteran stated that she has experienced symptoms since her service. She stated that her pain has increased over the last year. The September 2020 VA back examiner opined that the Veteran’s low back disorder is less likely than not caused by service. The examiner reasoned that the Veteran received in-service treatment for low pain after a motor vehicle accident in February 1992. The STRs show the Veteran reported feeling better after physical therapy. The examiner found no further complaints of back pain in service or immediately after service. The examiner stated the Veteran’s separation examination is silent for back complaints. The examiner concluded that although the Veteran states that she has had persistent pain since service, she did not seek treatment for back pain until 2009. The examiner found there is no continuity of care and no link connecting the Veteran’s resolved in-service low back injury to her current low back condition. Based on the foregoing, the Board concludes that the weight of the evidence does not support a finding that the Veteran’s low back disorder was manifested in service or to a compensable degree in the first year following her separation from service. Consequently, service connection for a low back disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that she has suffered from a low back disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The VA treatment records contains an October 2012 VA treatment provider opinion that the Veteran’s low back disorder is a continuation of the low back injury and treatment in service. However, the Board finds this VA treatment provider opinion to be inadequate as the opinion does not contain a rationale supporting the opinion. Therefore, this opinion is less persuasive than the September 2020 VA examiner’s opinion. The most competent evidence in the record that addresses the relation of the Veteran’s low back disorder to service is the September 2020 VA medical opinion, which stated that the Veteran’s low back disorder was not related to her service. As the September 2020 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. Further, the Veteran’s own statements relating her low back disorder to service are not competent evidence, as she is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether a low back strain, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, a strain is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a low back disorder. Accordingly, it must be denied. REASONS FOR REMAND 3. Entitlement to service connection for sinusitis, to include allergic rhinitis, is remanded. Remand is necessary to obtain an addendum VA opinion, or a new VA examination if necessary. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is considered adequate “where it is based on consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In a May 2012 VA treatment record, the Veteran complained of “sinus problems.” On examination, the medical provider observed the Veteran to have sinus tenderness. The medical provider’s impression is the Veteran’s has sinus problems. On the June 2012 VA sinusitis examination, the examiner indicated the Veteran has a diagnosis of chronic sinusitis. The June 2012 VA examiner opined that the Veteran’s sinusitis is less likely than not caused by service. The examiner reasoned that the Veteran has a history of pre-existing “hay fever” or allergic rhinitis, which was documented on her enlistment examination as well as on subsequent periodic physicals. The examiner stated there is no STR evidence suggesting aggravation of this condition beyond its normal progression in-service. Therefore, the examiner found that this condition was not incurred in or caused by military service and there is no evidence within the claims file to suggest permanent aggravation of this condition resulting from military service. On the September 2020 VA sinusitis examination, the examiner indicated the Veteran has a diagnosis of allergic rhinitis. The September 2020 VA sinusitis examiner opined that the Veteran’s sinusitis is less likely than not caused by service. The examiner reasoned that although the Veteran was diagnosed with acute sinusitis in October 1990 and January 1993, there are no signs or symptoms of chronic sinusitis on this VA examination and therefore the Veteran is not diagnosed with sinusitis. The examiner indicated that the Veteran is diagnosed instead with allergic rhinitis. The examiner further opined that the Veteran’s allergic rhinitis was noted on the Veteran’s enlistment examination, with an indication that she has hay fever and was allergic to dust and animals. The examiner stated that these complaints continue through the Veteran’s STRs. The examiner noted that on the Veteran’s separation examination, she marked no past or current sinusitis and instead marked that she has hay fever. The examiner noted the Veteran did not seek treatment for rhinitis during service and therefore, there is no increase in symptoms and no aggravation. The examiner further stated the Veteran does not have a current diagnosis of sinusitis and therefore it is less likely than not due to service. Finally, the examiner stated that the Veteran has allergic rhinitis which unmistakably existed prior to service and did not seek treatment for it in service or immediately after; therefore, it was not aggravated beyond natural progression. The VA examinations present conflicting diagnoses. The June 2012 VA examiner indicated the Veteran has a diagnosis of chronic sinusitis, and the September 2020 VA examiner indicated the Veteran does not have a diagnosis of sinusitis. Also, the March 2012 VA treatment records show that the Veteran complained of and was assessed to have “sinus problems.” As the record indicates the Veteran has a sinus disorder or symptoms of “sinus problems,” the Board finds that the September 2020 VA examination and opinion do not offer sufficient consideration of the entire record or sufficient detail for the Board to make an informed decision regarding the etiology of the Veteran’s chronic sinus disorder or sinus complaints. Therefore, remand is required to obtain an addendum VA opinion, or to provide an additional VA examination if found necessary. The matters are REMANDED for the following action: Obtain an addendum opinion, and if necessary an additional VA examination, from an appropriate clinician to determine the nature and etiology of the Veteran’s claimed sinusitis. The examiner must opine whether it is at least as likely as not that any diagnosed chronic sinusitis is related to service, to include in-service treatment for sinus complaints. The examiner must address the March 2012 VA treatment for “sinus problems,” the June 2012 VA examination diagnosis of chronic sinusitis, and the October 2012 VA treatment provider’s positive opinion in the medical opinion. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.