Citation Nr: 21024253 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-15 347 DATE: April 22, 2021 ORDER Entitlement to service connection for a low back disability, claimed as sciatica, is denied. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a hemorrhoid disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a urinary tract disability is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a low back disability began during active service or is otherwise related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to March 1992 and from August 2002 to March 2006, to include service in Southwest Asia. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office. The Veteran testified at a hearing with the undersigned in May 2020. VA was unable to obtain all of the Veteran’s service records. See VA Requests for Information with completion dates July 2, 2013 and February 15, 2017. The Veteran was properly notified of the unavailability of these records by a September 2017 letter. See 38 C.F.R. § 3.159(e). Service Connection for a Low Back Disability Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). While the Veteran contends that he was exposed to radiation from radar, the presumptive provisions of 38 C.F.R. § 3.309(d) and § 3.311 are not applicable in this case. He does not contend, nor does the record show, that he meets the definition of a radiation-exposed veteran. See 38 C.F.R. § 3.309(d)(3). He is also not claiming service connection for a disease specific to radiation-exposed veterans or a radiogenic disease. See 38 C.F.R. §§ 3.309(d)(2), 3.311(b)(2). The Veteran submitted into evidence a study on the effects of electromagnetic fields (EMFs) and public health, as well as a training course for fire controlmen and someone’s Master’s degree thesis on protecting military personnel and the public from the hazards of electromagnetic radiation from military communications and radar systems. After review, the Board finds these documents do not trigger any duty for VA to obtain a medical opinion regarding exposure to radar and the claimed back disability as they do not suggest this Veteran developed a back disability as a result of his exposure to radar. The study on EMFs discusses long term effects of exposure to be related to cancer, reproductive malfunction, cataracts, and changes in behavior or development of children. The Veteran’s primary contention is that he has a low back disability as a result of falling off a radar tower during his first period of service. In a May 2020 letter, the Veteran’s mother indicated that during the Veteran’s service from 1991 to 1992 he fell off a radar tower and a commander from the medical unit told her he had quite a fall and was exposed to electromagnetic radiation and microwaves. Service treatment records show the Veteran reported back pain in the thoracic spine in November 2004. He also reported back pain, neck pain, and diarrhea in July 2005. During his March 1992 separation examination, February 2003 enlistment examination, and December 2005 separation examination, evaluation of the spine was normal as was neurologic evaluation. In March 1992, February 2003, and June 2003 reports of medical history, the Veteran specifically denied having had recurrent back pain or relevant neurologic complaints. In the December 2005 report of medical history, the Veteran reported having had recurrent back pain or a back problem, although further explanation was not provided. He again denied relevant neurologic complaints such as numbness or tingling. The Veteran presented for a VA examination in July 2013, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner diagnosed chronic lumbar strain and opined that the low back disability is less likely than not incurred in or caused by service. In support of this conclusion, the examiner explained that the in-service complaints were regarding the upper back while the more recent complaints were regarding the lower back. According to the examiner, the current condition was different and unrelated to the in-service complaints. The examiner also explained that the Veteran’s neurological complaints related to the feet were due to peripheral neuropathy from nonservice-connected diabetes mellitus. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record such as the reports of medical history and examinations discussed above. The Board recognizes that the Veteran asserts his in-service back problems were of the lower and not upper back. He also asserts these problems began during his service in the early 1990’s. While the complete service treatment records are not available for that period, the available records show the Veteran had normal spine and neurologic evaluations at separation from that period of service and that he specifically denied having had recurrent back pain and relevant neurologic complaints at the time of separation. When he was examined for enlistment in February 2003, spine and neurologic evaluation was again normal and the Veteran again denied having had recurrent back pain or relevant neurologic complaints. In addition, testimony indicates the Veteran has had memory difficulties since a traumatic brain injury which occurred around 2015, in August 2012 the Veteran reported the onset of his current back pain was 5 months prior after a “several mile jog, pushed himself more than normal”, and in March 2014 a private clinician suggested that secondary gain in terms of VA compensation may be a factor in the Veteran’s symptom presentation. Given the above, the Board finds statements suggesting ongoing low back problems since service in the 1990’s to lack credibility and that the Veteran has not had ongoing low back problems since service. To be clear, the Veteran was in the best position to be aware of the presence or absence of back problems. His observations regarding his back while entering and exiting service are of particularly high probative value as they were made contemporaneous to service. In this case the Veteran’s reports at separation from service in March 1992 and enlistment into service in February 2003 are the most probative evidence regarding the existence of back problems continuing since his first period of service. As the Veteran denied a history of recurrent back pain or relevant neurologic complaints on both occasions, the Board finds the preponderance of the evidence shows that back problems did not start during his first period of service and continue thereafter. Regarding the complaints of back pain during the second period of service, this involved the upper back as noted by the VA examiner. The VA opinion adverse to the claim is the most probative evidence regarding a nexus between the current low back disability and the back complaints during the second period of service. The Board has considered the Veteran’s statements, to include his assertions that his low back disability is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. As the claimed symptoms are accounted for by a diagnosed disability, the provisions of 38 C.F.R. § 3.317 (Compensation for certain disabilities occurring in Persian Gulf veterans) are not applicable. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. REASONS FOR REMAND Service Connection for Bilateral Knee Disability In 2013, VA sought a medical opinion regarding whether the Veteran’s bilateral knee condition was incurred in or caused by service. The examiner provided a negative opinion but only addressed the question in terms of causation due to exposures during service in Southwest Asia. As the question asked of the examiner was not fully answered, remand is necessary for another medical opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Service Connection for Hemorrhoid Disability An additional medical opinion is necessary given unclear findings in the 2013 examination report. The examiner noted diagnoses of hemorrhoids in the 1990’s. It is unclear if this was simply a notation of the Veteran’s reports or something more. The only opinion offered by the examiner was in regard to hemorrhoids and exposures during service in Southwest Asia. If the Veteran had hemorrhoids during service in the 1990’s as the examination report suggests, then a medical opinion is necessary to address whether the current hemorrhoids found on examination are related to service. Service Connection for GERD An additional medical opinion is necessary as to this issue. The medical opinion obtained in 2013 indicates the claimed symptoms are due to a known clinical diagnosis; specifically, GERD. However, the opinion does not provide a complete rationale for the conclusion that the current GERD is not related to in-service stomach complaints in 2006. The provided rationale relies solely on the absence of disability during the separation examination with no discussion of the significance of this fact or of any other evidence. Service Connection for a Urinary Tract Disability An additional examination is necessary given unclear findings in the 2013 examination report. The examiner recorded two diagnoses related to the claimed condition: acute urethral trauma in 2005 and acute urinary tract infections beginning in the 1990’s. The Veteran reported recurring episodes of passing blood in his urine. The examiner determined that the disability pattern consists of a disease with a clear and specific etiology and diagnosis. The diagnosis is not clearly stated. Even assuming the diagnosis accounting for the blood in the urine is acute urinary tract infections, the examiner does not address if these episodes are related to the in-service urethral trauma noted in the diagnosis section of the report. Hence, additional examination and opinion is necessary. The matters are REMANDED for the following action: 1. Send the claims file to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a current left or right knee disability onset during service or is otherwise related to an in-service injury, event, or disease. The Veteran reports he hyperflexed his knee during training in 2002. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 2. Send the claims file to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current hemorrhoid disability onset during service or is otherwise related to an in-service injury, event, or disease. It is noted that a 2013 VA examiner listed hemorrhoids in the 1990’s in the diagnosis section of the report but it is unclear if this was meant as a finding or simply a recitation of the Veteran’s reported history. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. Send the claims file to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current GERD onset during service or is otherwise related to an in-service injury, event, or disease, to include the February 2006 notation regarding gastroenteritis. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 4. Schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current urinary tract disability onset during service or is otherwise related to an in-service injury, event, or disease, to include urethral trauma. The examiner should also address whether the Veteran has any objective signs of a urinary tract disability that are not accounted for by any diagnosed condition. If so, please list each sign/symptom and address the level of impairment and whether it is at least as likely as not that any sign/symptom is related to an undiagnosed illness or to a medically unexplained chronic multi-symptom illness as a result of the Veteran’s service in the Persian Gulf. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jarman, 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.