Citation Nr: 21023473 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-64 987 DATE: April 20, 2021 ORDER Entitlement to service connection for back condition, to include as secondary to service-connected lateral femoral cutaneous neuropathy, right thigh, is denied. FINDING OF FACT The Veteran’s back condition is not secondary to service-connected lateral femoral cutaneous neuropathy, right thigh, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for back condition, to include as secondary to service-connected lateral femoral cutaneous neuropathy, right thigh, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1972 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. The Board previously remanded the case for further development in December 2019, May 2020, July 2020, and November 2020. The case has since been returned for appellate review. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Moreover, additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records are silent for complaints, treatment, and diagnosis of any back condition or injury. Post-service treatment records show that the Veteran first sought treatment for lower back pain in February 2009. The Veteran submitted a letter dated March 22, 2016 from his primary care provider, Dr. J.L. Dr. J.L., who noted that she has been treating the Veteran for years, stated that while she could not say for certain that the Veteran’s degenerative joint disease was service related, she could say that he had been complaining of joint pain for years and his arthritis was at least as likely as not a consequence of injuries sustained while in service. See Medical Treatment Record – Non-Governmental Facility, received April 2016. The Veteran was afforded a VA back conditions examination in January 2020. The examiner diagnosed the Veteran with degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), and spinal stenosis. He opined that the Veteran’s lumbar spine condition was less likely than (less than 50 percent probability) incurred in or caused by military service or proximately due to or the result of or permanently aggravated beyond clinical expectation by his service-connected right lateral femoral cutaneous neuropathy. The examiner explained that the Veteran’s service treatment records, including the separation examination, are silent for a back injury or recurring and/or chronic lumbar spine condition, and medical treatment records documenting either a continuous, ongoing, chronic lumbar spine condition proximately subsequent to military service (6-24 months thereafter) and henceforth until present and/or a credible robust, well-grounded medical nexus based on ongoing, consistent documentation of lumbar degenerative joint or disc disease plausibly secondary to or permanently aggravated by right lateral femoral cutaneous neuropathy are lacking thereby nonetheless fails to substantiate his claim as contended. Pursuant to the May 2020 Board remand, an addendum medical opinion was obtained in June 2020. The June 2020 VA examiner opined that the Veteran’s degenerative arthritis of the spine, IVDS, and spinal stenosis were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that the Veteran’s service records, including the discharge documentation, make no mention of any back condition. He noted that the back condition was first referenced in 2009, with a magnetic resonance imaging (MRI) in 2010 that showed degenerative disc disease and spine stenosis at L4-L5 and L5-S1. He concluded that no nexus could be established. The examiner then opined that the Veteran’s degenerative arthritis of the spine, IVDS, and spinal stenosis were less likely than not (less than 50 percent probability) proximately due to or the result of the service-connected lateral femoral cutaneous neuropathy, right thigh. The examiner explained the VA examination of October 2011 related the lateral femoral cutaneous neuropathy to the right knee. He further noted that there was no mention made in that examination that related the condition to any back condition of back findings. He concluded that no nexus could be established. The examiner additionally opined that the Veteran’s degenerative arthritis of the spine, IVDS, and spinal stenosis were less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the Veteran’s service-connected lateral femoral cutaneous neuropathy, right thigh. As rationale, he explained that there was no mention of back pain until 2009. He stated the 2010 MRI is indicative that the Veteran’s back pain is due to arthritis, IVDS, and spinal stenosis rather than the lateral femoral cutaneous neuropathy. He explained that the lateral femoral cutaneous neuropathy was related to the Veteran’s knee conditions. He concluded that the Veteran’s back pain is unrelated to and not aggravated by his service-connected lateral femoral cutaneous neuropathy. Following the July 2020 Board remand, an addendum medical opinion was obtained in September 2020. The September 2020 examiner noted that although the Veteran asserted that his current back condition was incurred during service, his separation examination listed that the Veteran was negative for recurring back pain. He explained that there was no documentation in the Veteran’s available medical records that show that the Veteran was diagnosed with or treated for any back condition during service. He noted that the first mention of any back issues was in 2009 (approximately 36 years after the Veteran was discharged from service) and that that the Veteran was not diagnosed with degenerative disc disease and spinal stenosis at L4-L5 and L5-S1 until a 2010 MRI. He concluded based on this information that it was less likely than not that the Veteran’s present degenerative arthritis of the spine, IVDS, and spinal stenosis were incurred during service. Pursuant to the November 2020 Board remand, an addendum medical opinion was obtained in December 2020. The December 2020 examiner opined that the Veteran’s back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service event, injury, or illness. As rationale, the examiner explained that there was no evidence of a chronic back condition while in service. He noted that the separation examination (including the Veteran’s questionnaire and the physical examination) was negative for a chronic back condition and reports of low back pain. He stated that the Veteran reported himself to be in good health during the separation examination. The examiner explained that these types of examinations are notably thorough and, therefore, it would be unlikely that a significant back condition would have gone unreported or unrecognized. He stated that the was no evidence of care in post-service VA records until 2009 and noted that a 2010 MRI diagnosed degenerative joint disease and degenerative disc disease. He noted that the Veteran was currently diagnosed with those conditions, as well as IVDS and stenosis. He then noted that although there is no objective evidence for IVDS or radiculopathy on the Veteran’s VA examination, the 2010 MRI suggests a risk for radiculopathy and/or IVDS. He explained that given the ten-year span since that time, the likelihood that the Veteran developed radiculopathy and IVDS is high. He noted that muscle strength, DTRs, straight leg tests, and sensory tests were all within normal limits or negative. Regardless, he explained it was less likely than not that the Veteran’s degenerative spine disease was related to or due to events in service. He stated that no nexus was established in service or proximate to service, and that the was no evidence of a back condition until more than thirty years post-service. He described the medical opinion contained in the March 2016 letter from Dr. J.L. as being broad and general. He stated that it is common for private practitioners to opine for their patients without providing documentation or evidence to support that opinion. He then explained degenerative spine disease, in the absence of an acute injury is considered an aging process due to normal wear and tea, with resultant inflammation of the facet joints and natural desiccation of the discs, with associated inflammation. He found that the Veteran’s degenerative spine disease was age-appropriate at the time of the diagnosis, noting that greater than 50 percent of men over the age of 50 have will have evidence of degenerative spine disease, the prevalence rising significantly every decade thereafter. The examiner concluded that it was more likely than not that the Veteran’s degenerative spine disease had its onset in or around 2009, due to natural causes, and was therefore, less likely than not related to events in service. Additional post-service treatment records do not provide an opinion related the Veteran’s back condition to active service or to his service-connected lateral femoral cutaneous neuropathy, right thigh. Overall, the Board finds that the competent evidence of record does not show that the Veteran’s back condition is related to service or is caused or aggravated by his service-connected lateral femoral cutaneous neuropathy, right thigh. Here, the record shows that the Veteran first complained of back pain in 2009, more than 35 years after discharge from service. The Veteran’s service treatment records were negative for complaints of or treatment for a back condition. Moreover, there is no probative evidence that his back condition is related to an in-service event, illness, or injury sustained by the Veteran or caused by his service-connected lateral femoral cutaneous neuropathy, right thigh. The Board acknowledges that the Veteran’s primary care provider, Dr. J.L., opined in a March 2016 letter that the Veteran’s arthritis was at least as likely as not a consequence of injuries sustained while in service; however, she did not provide any rationale to support this opinion. By contrast, the medical opinion provided in the June 2020 VA examination which found that the Veteran’s back condition was less likely than not proximately due to or aggravated beyond natural progression by his service-connected lateral femoral cutaneous neuropathy, right thigh, as well as the medical opinion provided in the December 2020 VA examination which found that the Veteran’s back condition was less likely than not related to his active service, contained clearly articulated medical opinions based on thoroughly detailed rationale. The Board thus finds the June 2020 and December 2020 VA medical opinions to have greater probative value. The Board has considered the lay statements from the Veteran regarding the etiology of his claimed back condition. However, the ability to diagnose and relate medical conditions to military service and other service-connected medical conditions requires complex medical knowledge that the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board affords higher probative weight to the competent medical evidence of record, specifically the June 2020 and December 2020 VA medical opinions. After careful review of the foregoing, the Board has determined a preponderance of the evidence weighs against the Veteran’s claim. Accordingly, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.