Citation Nr: 21028119 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-36 522 DATE: May 10, 2021 ORDER Entitlement to service connection for lumbosacral strain with degenerative disk disease (claimed as low back pain, sciatica, bulging disc, herniated disc, disc fissure, degenerative disc, leg and hand numbness) is denied. Entitlement to service connection for a left ankle condition (claimed as ankle weakness and pain) is denied. FINDINGS OF FACT 1. A lumbar spine disability did not manifest in active duty or within one year of separation from active duty and is not otherwise attributable to active duty service. 2. 2. A left ankle disability did not manifest in active duty or within one year of separation from active duty and is not otherwise attributable to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lumbar disorder have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). 2. The criteria for entitlement to service connection for left ankle disability have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1981 to November 1987. The Veteran's military occupation was as a radio operator, and he received a parachute badge. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board virtual video conference hearing before the undersigned Veterans Law Judge in October 2020. A transcript of the hearing has been associated with the claims file. Previously, the Veteran's claim was before the Board most recently in December 2020 and was remanded for additional development, which has been completed. As such the Board finds that the prior remand directives have been substantially complied with and the claim is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION The Veteran contends that a lumbar and a left ankle disability were incurred in, aggravated by, or otherwise attributable to, active duty service including parachute jumps and marches. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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 will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases to include arthritis and degenerative disc disease (DDD) may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. Evidence The Veteran's service treatment records (STR's) are associated with the claims file. In a July 1982 STR, the Veteran complained of pain in his left heel that had been occurring for a week and a half. The Veteran stated that the pain was at the bottom of his feet and his left heel was swollen. The clinician noted that the left heel was slightly swollen with tenderness to touch, and the range of motion revealed no pain. The clinician diagnosed achilles tendinitis. See October 2015 STR-Medical, p.39. In a February 1983 STR, the Veteran was seen for a follow-up for a left ankle injury. Range of motion was intact and the ankle was negative for a strain. See October 2015 STR-Medical, p.31. In another February 1983 STR, the Veteran complained that he had twisted his right ankle while running. He reported that he slipped in a hole and twisted his ankle in an inversion motion. Range of motion was fair, and area was tender to touch. The right ankle was sprained. The Veteran also injured his left ankle while running. There was swelling and tenderness to the left ankle, but range of motion was intact. The clinician stated that the left ankle probably had a grade 1 sprain and the Veteran was to wear a splint for 72 hours. See October 2015 STR-Medical, p.34-35. In another February 1983 STR, the Veteran complained of an inversion twist injury to his left ankle that morning. The Veteran experienced pain and tenderness. See October 2015 STR-Medical, p.35. In a March 1983 STR, the Veteran reported that he was feeling much better and had no left ankle swelling and mild tenderness. The clinician indicated that the injury was resolving and there was to be no running, jumping, marching or pull-ups. See October 2015 STR-Medical, p.32. In a March 1983 STR, the Veteran was seen for a followup of an ankle sprain, which the Veteran stated was a problem when he walked longer distances and his ankle swelled. The clinician noted that there was mild tenderness, no edema or discoloration and the ankle sprain was resolving. See October 2015 STR-Medical, p.29. In a May 1984 STR, the Veteran was seen for complaints for lower back pain for two weeks. The Veteran reported problems with sitting, walking, standing, bending, and lifting. The Veteran stated pain was in the spine, the lower back with no recollection of trauma and that the pain onset prior to any jumps. The clinician indicated that there was full range of motion with tenderness to S-1, the low lumbar region. The Veteran noted there was pain when his legs were bent towards his back. An X-ray was within normal limits. See October 2015 STR-Medical, p.21. In an August 1984 STR, the Veteran complained that he had low back pain for two days. The Veteran stated he fell and pulled his back while lifting. The clinician indicated that the Veteran had a full range of motion. See October 2015 STR-Medical, p.48. In a March 1987 report of medical examination, the Veterans upper extremities, lower extremities, and spine, and other musculoskeletal were normal. See October 2015 STR-Medical, p.63. In the associated medical history questionnaire, the Veteran denied all questions but did not respond to the question for recurrent back pain. He did deny any illness or injury other than those noted and none were noted. In an August 1987 STR, the Veteran complained of a back injury for three days and denied having any trauma. The Veteran's back was negative for crepitus and positive for pain around the shoulder blade. Treatment was with over the counter anti-inflammatory medication. See October 2015 STR-Medical, p.5. In an October 1987 STR, the Veteran complained of pain in his right foot. The Veteran stated he was running and twisted his ankle on a rock in the road. The clinician noted that the Veteran had a prior history of ankle and foot problems. The Veteran was positive for swelling, there was pain on palpation and there was full range of motion with pain. The clinician diagnosed a sprain and provided a flexible wrap and advised cold compresses. See October 2015 STR-Medical, p.3. One week later, a clinician evaluated the inversion injury and noted mild swelling but progressive relief. He advised no running or jumping for one week and then running at own pace. The range of motion was within normal limits, with mild swelling. See October 2015 STR-Medical, p.4. Three weeks later, a clinician noted that the sprain had resolved and that the Veteran could return to self-paced running. In November 1987, the Veteran declined to undergo a discharge physical examination In a February 1998 VA treatment record, the Veteran underwent a magnetic resonance imaging test (MRI). The diagnosis degenerative disc disease at the L4-L5 and L5-S1 levels. There were also possible small disc herniations at the L5-S1 and L2-L3 levels. The physician recommended the Veteran undergo CAT scan. See March 2016 Medical Treatment Record-Government Facility, p.7. The Veteran was granted disability benefits by the Social Security Administration in 2005 in part because of a lumbar spine disability. Records of that adjudication are in the file. In February 1998, a private physician noted a follow up from a 1995 back injury at work. In a November 2003 spine consultation, the Veteran reported that he had his first lumbar spine injury in 1990 and another in 1995. In a March 2004 notation, the Veteran reported work related lumbar complaints. In an August 2004 examination, the Veteran reported that he had injured his back in a workplace accident in October 1995. The Veteran reported that he had made six Workers' Compensation claims in the 15 years. He reported that he had worked for a company and had many more accidents that were not reported. However, there were no records indicating his back symptoms were related to service but instead related to a civilian work injury in October 1995. In a November 2003 SSA record, the Veteran reported that he was involved in a work-related incident in 1995, where he slipped and fell on some hydraulic fluid. The Veteran reported his first injury was in 1990 and he was diagnosed with a lumbar strain/ sprain that resolved well. However, the injury he had in 1995 continued to give him persistent difficulties. He felt a pop in his back after the injury and was diagnosed with a lumbar strain/ sprain. And prior to his evaluation he had a MRI that showed he had a bulging disc and he continued to have pain since that time. See December 2020 Medical Treatment Records-Furnished by SSA, p.21. In an August 2004 SSA record, the Veteran was seen for back complaints. He had continued symptoms in his low back and left leg. The Veteran had positive straight leg raising on the left at 45 degrees but no neurologic deficit, no reflex change, and no strength deficits. The examiner stated that he felt he was disabled on a permanent basis. See December 2020 Medical Treatment Records-Furnished by SSA, p.10. None of these records mention injuries in service as would have been appropriate for clinicians to understand the nature of the disability. VA received treatment records are associated with the claims file and date from the late 90's through 2016. In an October 2007 VA treatment note, the Veteran was seen for hip, lower back, and neck pain. The Veteran reported onset of pain since a fall in 1995 and stated he had constant pain that felt like pressure, dull, burning, and aching. See December 2015 Capri, p.1. In July 2015, the Veteran was seen for left heel pain. The clinician noted that the Veteran had problems and pain for over a month that had been getting worse without any injury. The clinician gave him a night splint and had him continue stretching and icing the region. The clinician also recommended he see a foot and ankle doctor for further treatment. See March 2016 Medical Treatment Record-Government Facility, p.12. In September 2015, the Veteran was seen for a left plantar fasciitis and had been diagnosed within those last three months. The examiner conducted an examination and found that he had plantar medial heel tenderness and moderately tight achilles. The Veteran was offered a steroids injection and if the condition lasted 9-12 months then surgery was to be considered. See March 2016 Medical Treatment Record-Government Facility, p.13. In December 2015, the Veteran was afforded a VA back conditions examination. The examiner noted that lumbosacral strain had been diagnosed in August 1987 and intervertebral disc syndrome (DDD) had been diagnosed in 1999. The examiner noted that in August 1987 the Veteran reported that he had back pain for three days without trauma. Then in in an October 2007 VA treatment note he reported he had back pain since he fell from a platform in 1995 and had not been able to work since 2002. The Veteran used a cane occasionally as an assistive device due to back pain. The examiner stated that the condition impacted the Veteran's ability to work, because he was unable to do any physical work. The examiner found that the back condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, because the Veteran only had minor episodes of back pain in service. In addition, the examiner stated the Veteran indicated that his low back pain was caused by a fall in 1995 and not the 1987 incident in-service. The Board, however, notes that the examiner's opinion is not completely correct, because the Veteran had more than just a minor episode of back pain in-service. In March 2016, the Veteran submitted a correspondence. The Veteran reported that he was seen by a private physician from December 1987 until August 1991 on a regular basis due to his chronic back problems. The Veteran also noted he began to see another physician in 1995 related to his back problems. The Veteran listed several dates where he missed time from work due to his back issues and indicated that he received a lumbar steroid epidural injection in April 1998. However, he stated that the epidural did not fix or repair his problem. Furthermore, the Veteran reported that during a social security disability hearing dated April 7, 2005 he was determined to be totally and permanently disabled since May 1, 2003. See March 2016 Correspondence, p.2-5. In terms of the Veteran's ankle, he reported that while stationed in Germany he ran out a back gate into the woods one morning and stepped on something, snapping his ankle sideways. The Veteran indicated that he ended up in a cast and on crutches for a month. The Veteran stated that his ankle was never the same because it bothered him, constantly swelled up and running was difficult. He also stated that prolonged standing or walking would cause him pain. The Veteran noted that he had not come across his military records noting this event, but his ankle still caused him problems to the present. The Veterans hearing transcript is discussed below. See March 2016 Correspondence, p.20-21. In October 2020, the Veteran attended a virtual Board hearing. During the hearing the Veteran's representative testified that he was seen for spinal adjustment from the time of his discharge in 1987 until 1991. See October 2020 Hearing Transcript, p.3. The Veteran's representative argued there was a continuity of chronicity in his ailments because the Veteran began to see another chiropractor from 1995 to 2016. See October 2020 Hearing Transcript, p.3. However, the Board notes there is a gap of 4 years in the Veteran's treatment. The representative also testified that the Veteran hurt his ankle with rigorous PT, hikes, and prolonged marches. See October 2020 Hearing Transcript, p.3. The Veteran testified while he was in-service, he was a radio operator and a paratrooper that jumped with heavy weight, weighing more than him. He stated that he completed well over 20 jumps. He testified that when he was under full combat load, he had to carry equipment of at least 120-130 pounds. See October 2020 Hearing Transcript, p.4-5. The Veteran further testified when he made jumps, he could not control how he landed. He stated that landings did not always go as planned. See October 2020 Hearing Transcript, p.4-5. The Veteran indicated that he injured his back several different times after jumps and that he hit so hard that he was dragged by his chute. See October 2020 Hearing Transcript, p.6. The Veteran noted that there was more than one time where he hurt his ankle and tore his achilles tendon. There was another time he snapped his ankle sideways and had to wear a cast for a while. See October 2020 Hearing Transcript, p.7. The Veteran testified that he had numerous spinal injections and epidurals at different levels of his spine. He also noted that he was receiving oblations because the pain became so severe, he could not move or get up in the morning. The Veteran stated he received the treatment every six months, due to the pain becoming so severe and so he could move. See October 2020 Hearing Transcript, p.8. During the hearing the Veteran indicated that he had social security benefits. However, since the time of the remand the Board has obtained social security administration records and there is mention of the Veteran being treated for his back and other ailments. The administrative law judge found the Veteran disabled in part from a back disability but it is not clear whether disability payments were authorized. In addition, a March 2016 correspondence from SSA indicated the Veteran was denied benefits in April 2005. Furthermore, the Veteran briefly mentioned his injury in 1995 he obtained at work. After that injury he stated that he continued to work but it got to the point where he could not work anymore. Also, he testified that the injury aggravated what he was already experiencing from his time in-service. See October 2020 Hearing Transcript, p.12. In October 2020, the Veteran's private physician submitted a statement. The physician stated he had been seeing the Veteran since 2016 and it was in his opinion that the Veteran's chronic injuries to his back partially stemmed from his service 39 years earlier. However, there was no rationale included for the physician's opinion and there was no indication that the physician had done a complete review of the Veteran's medical records. The physician did not mention the history of workplace injuries. See October 2020 VA 21-4138 Statement In Support of Claim, p.4. In January 2021, the Veteran was afforded another VA back examination. The examiner found that it was less likely than not that the Veteran's back condition was caused by active duty. The examiner indicated that the Veteran's current findings did not show a clinical nexus to the back pain he experienced in 1984 and 1987. The examiner acknowledged the Veteran's report of strains from jumps in-service and marching but found that there was no clinical nexus evident. The examiner also commented that the private physician's note stating that the in-service events may have been "partially" responsible but that he did not provide clinical evidence to support a nexus. In addition, the Veteran was seen for a left ankle VA examination on the same day. The examiner found that it was less likely than not that the Veteran's ankle condition was caused by active duty. The examiner provided a similar rationale. The examiner indicated that the Veteran had strains from jumps in-service and marching, but there was no clinical nexus evident and noted that the private physician's note stating that the in-service events may have been "partially" responsible but that he did not provide clinical evidence to support a nexus. The present disability element for establishing service connection for lumbar disability and a left ankle disability is present. There is lay and medical evidence of strains of the back and twisting of the ankle in service; however, the competent evidence of record fails to disclose an in-service incurrence or injury. Likewise, the evidence of record fails to show that either a chronic lumbar disability or a left ankle disability manifested within one year of the Veteran's separation from active duty service. See 38 C.F.R. §§ 3.307(a), 3.309(a). The records supports a finding that the Veteran's back and ankle sprains had resolved prior to leaving service. In addition, there is insufficient medical evidence to suggest that there was a continuing of symptoms since his injuries in-service and once he left service. The Veteran discharged from service in 1987 and testified in his hearing that he had treatment until 1991. However, the Veteran's injuries resolved, and he was not treated again for lumbar or ankle issues again until 1995, after an injury related to a civilian job, several years after he left service. The Board places less probative weight on the contentions of a continuity of disability from the time of discharge because the Veteran repeatedly referred only to a workplace injury. The Board acknowledges his reports of rigorous activities in service from parachute jumps with heavy equipment and marching back to the base. The Board also acknowledges his reports that seeking medical care in his unit was discouraged. However, he did seek care on a number of occasions for strains for which the treatment was rest and anti-inflammatory medication with no evidence of fractures. The Veteran also denied any chronic symptoms in the March 1987 examination and declined another examination in November which would have been an appropriate opportunity to document chronic disorders. The Board assigns significant probative weight to the SSA and private records of care and the Veteran's own reporting to these authorities that entirely addressed multiple workplace accidents without any mention of a contribution by his Army service. The Board assigns diminished probative weight to the private physician's opinion. He did not indicate review of the Veteran's claims file, including his injuries in-service (noted in his STR's), or post-treatment records that discussed his accidents and injuries after service. The physician's rationale was based wholly upon the Veteran's subjective accounts. See Sklar, supra. The Board assigns significant probative weight to the January 2021 VA examination medical opinions, and other examinations. In the examination, the physician reviewed the claims file; considered the Veteran's accounts; and conducted a clinical evaluation. The examiner reviewed the contents of the claims file and acknowledged the Veteran's duties as a paratrooper but also noted the absence of injury or onset of chronic disorders; and acknowledged that there was no nexus between the Veteran's current disabilities and his time in-service. Moreover, the VA examiner provided rationales for his respective negative nexus opinions, based in evidence of record or medical literature. The weight of competent and credible evidence is against the Veteran's service connection claims; there are no doubts to be resolved. See 38 U.S.C. § 5107(b). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, 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.