Citation Nr: 21025266 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 10-30 573 DATE: April 27, 2021 ORDER Service connection for a lumbar spine disability is denied. Service connection for sciatica of the bilateral lower extremities as secondary to a service-connected disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s lumbar spine disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s sciatica of the bilateral lower extremities is secondary to a service-connected disability, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sciatica of the bilateral lower extremities as secondary to a service-connected disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Army from October 1964 to October 1967, including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2008 and December 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a travel board hearing before the undersigned Veterans Law Judge in July 2018. A copy of the transcript is associated with the claims file. The Board previously remanded these claims in October 2018 and July 2020, in addition to the claim of service connection for a skin disability. During the pendency of this appeal, the RO granted service connection for dermatophytosis, including tinea pedis and onychomycosis. See March 2021 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to the claim for skin disability. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Service connection for a lumbar spine disability is denied. The Veteran contends that his lumbar disability is related to injuries in service, to include a fall down a flight of stairs. See July 2018 Board Hearing; January 2009 correspondence. Although the Veteran contends that follow up treatment was recommended, he indicated that he did not seek follow up treatment due to his desire to facilitate his impending discharge from service. For the reasons that follow, the Board finds that service connection is not warranted. Service treatment records confirm the Veteran’s report of a fall, as well as presenting a complicated picture as to his lumbar spine. Initially, the April 1965 service treatment records noted the Veteran had been in an auto accident 7 months prior (in September 1964) with pain the sacral area since then. Although the reported auto accident occurred prior to service, the enlistment examination in October 1964 revealed a normal spine, other musculoskeletal, and no related disability was noted at entrance. See 38 U.S.C. § 1111. Thus, the presumption of soundness applies in this case. In September 1966 service treatment records, the Veteran reported a back injury from an auto accident in April 1965 (during service) with an assessment of muscle pain in back. As noted, service treatment records also document a fall down five stairs in September 1967, with injuries to the ear, and pain in the neck. The physical exam showed a stiff neck and questions regarding the cervical spine. The clinical impression indicated a strain. By the time of the October 1967 clinical evaluation at separation, the Veteran was noted to have normal spine, other musculoskeletal. Likewise, at the October 1967 separation report of medical history, the Veteran reported good health and checked “no” to having recurrent back pain. Post service, the Veteran had an extensive history of treatment and injuries to the lumbar spine. At a May 1972 VA examination, the Veteran reported back pain. The Veteran also reported pulling his back muscle on the job and an in-service fall down a flight of stairs. The physical evaluation noted no impairment of motion or function of any joint, except cervical spine, and no diagnosis related to the lumbar spine was given. In that same year, the Veteran was involved in a motor vehicle accident with complaints of severe neck and lumbodorsal discomfort. See November 1972 private treatment record. The imaging was negative except for spondylosis of the L5-S1. The diagnoses of lumbodorsal sprain and asymptomatic spondylolisthesis L5-S1, among others, were given. The Veteran continued to complain of tenderness and discomfort in the lumbar spine following this accident. See December 1972 and March 1973 private treatment records. The Veteran again sought treatment for back pain in May 1973. At that time, he dated his symptoms to a November 1972 motor vehicle accident. A diagnosis of residual lumbar spraining injury was given, among others. See also December 1973 private treatment record. In February 1974, the Veteran reported a fall and reinjury of his back. Subsequently, the Veteran reported continuing lumbar soreness and a February 1975 X-ray showed slight narrowness of the L5-S1, continuing evidence of pedicle defect at left L5-S1, and some indication of disc degeneration. The Veteran was again examined by VA in May 1976 with complaints of low back problems. At the time, the Veteran reported multiple motor vehicle accidents and disc fusions. The Veteran further reported that he was healthy until these accidents, with the most recent accident in 1972. The clinical impression was spondylolisthesis of the lumbar spine. A July 1976 lumbar spine radiograph shows essentially normal spine without evidence of spondylolysis or spondylolisthesis. In October 1990 VA treatment records, the Veteran again reported back pain. He also reported that the pain originated with a work related injury in 1980 as well as multiple back surgeries. In January 2006, the Veteran reported constant low back pain for the last 25 years (1981). See also February 2009 VA treatment records (reporting low back pain for 20 years). Comparatively, the Veteran reported a 40 year history of back pain in December 2006 (1966). In a March 2009 VA examination, the Veteran reported that he injured his back during a fall down some stairs in service. The X-ray showed mild lumbar scoliosis, marked degenerative intervertebral disc space reduction at L4-L5, bony spurring, and the possibility of spondylosis. The Veteran underwent a VA examination in October 2019. The October 2019 examination report includes a medical nexus opinion on the nature and etiology of his lumbar spine disability. The Veteran reported that his condition started due to an injury in service. Upon examination, the examiner noted diagnoses of degenerative arthritis of the spine, and scoliosis of the lumbar spine. However, the examiner opined that the Veteran’s lumbar spine disability was less likely than not related to service. The examiner noted no record of a back condition in service and that separation examination was silent for such chronic medical conditions. The examiner further attributed the Veteran’s current disability to the post-service, November 1972 motor vehicle accident. Notably, the examiner indicated that the post-service motor vehicle accident involved injury to the back and the Veteran’s lumbar surgeries occurred after the November 1972 accident. In July 2020, the Board remanded the matter for an addendum opinion which fully considered the evidence of record, including the May 1972 VA examination and complaints of back pain. Pursuant to the Board’s remand, the Veteran was afforded another VA examination in December 2020 with the examiner authoring a December 2020 medical opinion. The examiner noted multiple diagnoses, including degenerative arthritis of the lumbar spine status-post fusion and laminectomy with hardware, and dextroscoliosis of the lumbar spine. The Veteran reported onset of his symptoms in the 1970’s after falling down some stairs and hurting his back. Nonetheless, the examiner opined that the Veteran’s claimed lumbar spine disability less likely than not had its onset during military service or is otherwise related to military service. The examiner noted review of the VA examinations and treatment records, to include having fell down a flight of stairs in service. Nonetheless, the examiner noted that the Veteran denied any complaints of back pain at the time of separation. In addition, further complaints of back pain and surgeries occurred after the Veteran’s post-service motor vehicle accidents. These accidents occurred years after service. The Veteran’s clinical history and lay statements at the time of separation were inconsistent with an etiology linking in-service fall down the stairs and his current disabilities. The Board finds the collective October 2019 and December 2020 nexus opinions probative because the examiners considered the entire medical history of the disability and the Veteran’s relevant lay statements. This included the treatment records and report of the in-service fall and the post-service clinical history. The examination reports and opinions provided the Board with a clear description of all relevant data points necessary to evaluate this claim. Further, the claims file does not contain evidence indicating the Veteran’s arthritis of the lumbar spine had onset during service or to a degree of 10 percent or more within a year of discharge from service. Notably, post-service imaging ruled out such diagnosis in the years following service. See e.g. November 1972 private treatment record. Further, on the report of medical history at separation, the Veteran marked “no” to recurrent back pain. A normal spine was noted at the separation evaluation. Although the Veteran reported that his disability had onset in service or related to service, he is not competent to opine on the matter or make a diagnosis based on his perceived symptoms. The Veteran has not been shown to possess any medical training or expertise. This is a medically complex matter involving a disease process that is not discernible with the senses and involving a complex medical history. Thus, it is beyond the competency of any lay opinion on the matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the contemporaneous clinical findings, and the VA examiner’s opinions outweigh the Veteran’s lay assertion in that regard. Moreover, the Board notes that the Veteran’s reports are not consistent with his statements at the time of separation or in treatment records post-service. Rather, the Veteran denied back pain at separation. In addition, the Veteran has often related his symptoms to work related injuries or post-service motor vehicle accidents. In addition, the Veteran reported symptoms had onset in the 1980s, almost 2 decades after service. In sum, the Veteran’s lumbar spine disability was not shown as chronic during service and any arthritis did not manifest to a degree of 10 percent or more within a year of discharge from service. 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). Examination at separation from service was normal. Collectively, the October 2019 and December 2020 VA examination report and opinion weigh against a nexus between the current disability and active service. The VA examination reports are the only competent evidence in that regard, and are persuasive evidence against the claim. Given the above, the preponderance of the evidence weighs against a nexus between the current disability and active service. Accordingly, there is no reasonable doubt to be resolved in this instance. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for a lumbar spine disability is not warranted. 2. Service connection for sciatica of the bilateral lower extremities as secondary to a service-connected disability is denied. The Veteran seeks service connection for sciatica of the bilateral lower extremities as secondary to his lumbar spine condition. See January 2009 correspondence; July 2018 Board Hearing. The Veteran has not raised entitlement to direct service connection, however, the RO considered direct service connection in the rating decision on appeal. As noted, service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of secondary service causation, 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 current disability and the service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). The dispositive question before the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. The evidence establishes that the Veteran did not have sciatica of the bilateral lower extremities for many years after service. For example, in January 2006 treatment records, the Veteran was seen for a neurological consultation in relation to constant low back pain. However, he denied radiating low back pain and sciatica. Examination showed no neurological deficits and there was no clinical evidence for lumbar, cervical, or sacral radiculopathy or myelopathy. Subsequently, the Veteran’s reports of low back pain began to include symptoms of sciatica or other neurological issues. In February 2009 treatment record, neurological examination showed abnormal reflexes of the bilateral lower extremities and positive straight leg tests. In later February 2009 treatment records, the Veteran complained of radiating pain and mild weakness in the bilateral lower extremities. The Veteran was afforded a VA examination as to the spine and neurological conditions in March 2009. The examination noted abnormalities of the lower extremities. The examiner gave the Veteran a diagnosis of sciatica of the bilateral lower extremities secondary to lumbar disk disease. The Veteran was afforded a VA examination as to peripheral neuropathy in October 2019. The examiner conducted a review of the Veteran’s clinical history and the evidence of record. Physical examination of the Veteran was normal. Nonetheless, the examiner noted a diagnosis of sciatica of the bilateral lower extremities based on symptoms and subjective factors. The examiner also offered an October 2019 medical opinion as to this claim. The examiner opined that the claim was less likely than not related to service. The examiner noted that the Veteran’s clinical history was silent for sciatica of the bilateral symptoms during service. Rather, the examiner found the November 1972 motor vehicle accident as dispositive as to the etiology of the sciatica. VA obtained an addendum opinion in December 2020. In the first sentence, the opinion indicated that the Veteran’s sciatica is less likely than not related to his lumbar spine condition. However, the examiner goes on to state that the Veteran’s sciatica is not related to service because the lumbar spine condition is not related to service. Thus, the examiner concluded that the Veteran’s sciatica is not related to a service connected condition. Despite the initial statement, the Board finds that the examiner is clearly relating the Veteran’s sciatica of the bilateral extremities to his lumbar spine condition. Upon review, the Board finds that service connection is not warranted. In this case, the competent and probative evidence relates the Veteran’s sciatica of the bilateral lower extremities to his diagnosed lumbar spine disability. The March 2009 VA examination noted that the Veteran’s sciatica is secondary to his lumbar spine disability. In addition, the December 2020 opinion related the sciatica to the lumbar spine disability. The Board finds the opinion of the March 2009 and December 2020 VA examiner to be probative because each examiner is competent to evaluate the claimed disability. Each opinion considered the Veteran’s reported symptoms and his entire documented clinical history. Furthermore, there are no competent opinions to the contrary. The Board has denied service connection for the lumbar spine disability. Because a lumbar spine disability is not service-connected and there are no other service-connected disabilities to which a theory of secondary service connection could apply, the theory of secondary service connection must be denied as a matter of law. See 38 C.F.R. § 3.310 (a); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Ultimately, the competent and probative evidence does not establish a nexus between the claimed sciatica of the bilateral lower extremities with service, to include as proximately due to, or aggravated by a service-connected disability. In reaching this conclusion, the Board finds the benefit of the doubt doctrine inapplicable. Service connection for sciatica of the bilateral lower extremities is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.