Citation Nr: 21028459 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 12-11 838 DATE: May 11, 2021 ORDER Entitlement to service connection for a spine disorder is denied. REMANDED Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a groin and/or testicular disorder is remanded. Entitlement to service connection for a respiratory disorder is remanded. FINDING OF FACT The weight of the evidence does not show that the Veteran's spine disorder was incurred in or resulted from active duty service, had continuous symptomatology since service, or manifested within one year from separation from service. CONCLUSION OF LAW The criteria for service connection for a spine disorder are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1978 to January 1984. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claims were last before the Board in March 2018. The Veteran was scheduled for a Board hearing in May 2013, but failed to report for the hearing. The evidence notes periods of time when the Veteran was not working or contended that his disabilities made it difficult for him to work. Although a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities can be inferred under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Board notes that in Rice, the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU is part and parcel of an increased rating claim when such claim is raised by the record. However, in order for a TDIU to be inferred as part and parcel of a pending claim, there must be a pending appeal from an assigned disability rating. Id. Here, the claims currently on appeal are service connection claims, and none represent an appeal from an assigned disability rating. As such, to the extent that the evidence can be interpreted to raise a TDIU claim, the Board does not address such a TDIU claim herein. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Pertinent here, arthritis is considered a "chronic disease" under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, becomes manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). While 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. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. 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, supra. 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. 1. Entitlement to service connection for a spine disorder The Veteran asserts that his spine disorder warrants service connection. In his May 2008 claim application, he reported that his back injury occurred during service on October 5, 1979. However, he had not received treatment since separation from service as he did not have health insurance. See March 2010 statement. In his April 2012 VA Form 9, he stated that he was now continuing to receive treatment for the in-service injury. He contended that he had well-documented chronicity and continuity of symptomatology of his lower back disorder, which now entailed other areas of weakness in the lower back, which caused secondary problems including degenerative arthritis in the lower back. Evidence In this case, service treatment records (STRs) reflect that the Veteran was assessed with a pulled muscle on the left lower side of the back in August 1980. In September 1980, he had right-sided soreness over the right buttocks and the small of the back for two days after lifting ordinances two days ago. He was assessed with muscular strain. The July 1982 extension examination report and October 1982 reenlistment examination report reflect normal clinical evaluations of the spine. An October 1983 examination report reflects the Veteran's denial of recurrent back pain. The January 1984 separation examination report reflects a normal clinical evaluation of the spine. A September 2007 VA treatment record reflects an injury to the lower back while moving a ladder, and an assessment of low back pain. A July 2011 VA examination report reflects review of the Veteran's claims file and a diagnosis of degenerative joint disease (DJD) of the lumbar spine. The Veteran complained of pain in the lower back with radiation down the legs for many years. X-rays in 2011 were consistent with DJD of the lumbar spine. He was seen in 1980 for back pain, and was diagnosed with muscular strain. The examiner noted that there was no indication that the Veteran had a chronic back condition during service. The examiner opined that the current diagnosis of DJD of the lumbar spine was not the same condition for which he was seen during service. August 2011 VA treatment records reflect a complaint of bilateral lower back pain below the belt line for over 35 years with a worsening over the past three to four years. He was diagnosed with chronic low back pain with leg pain, degenerative disc disease (DDD), and spondylolisthesis at the L4-L5. A February 2012 VA treatment record reflects an assessment of lumbar spinal stenosis. In May 2012, the Veteran had a diagnosis of lumbar spondylolisthesis L4-5 for which the Veteran was hospitalized to have a L4-5 transforaminal lumbar interbody fusion (TLIF), L4-5 interbody arthrodesis, L4-5 interbody fusion with local autograft and infuse, L4-5 interbody graft, and L-5 posterior segmental instrumentation performed. He was discharged after two days with a diagnosis of mechanical back pain. In November 2012, he was assessed with chronic low back pain with left sciatica. An October 2014 VA walk-in note reflects that the Veteran had back surgery in 2012 and did not have current back pain, although he complained of pain in the left lower limb. The July 2011 VA examiner provided a January 2016 VA addendum reflecting that the Veteran's current back disorder was consistent with DJD of the lumbar spine. Muscle strain was less likely the cause of the Veteran's current DJD of the lumbar spine as he was diagnosed with DJD many years after leaving active military service. Rather, his DJD was at least as likely as not the result of the normal aging process. Social Security Administration (SSA) records include a July 2016 Florida Department of Health Division of Disability Determinations Consultative Examination Report, which reflects the Veteran's complaint of lower back pain, which he attributed to service. He stated that loading heavy weapons and ordinance "took a toll" on his back. He also reported "sore sensations involving the lower back." He was diagnosed with post-laminectomy syndrome. An August 2016 Disability Determination and Transmittal reflects that the Veteran's disability was determined to have begun on April 30, 2016, with a primary diagnosis of disorders of the back (discogenic and degenerative). A January 2020 VA addendum reflects diagnoses of lumbar muscular strain, resolved, during active duty service and lumbar spondylolisthesis L4-5 status post L4-5 TLIF. The examiner then opined that the Veteran's lumbar spondylolisthesis was less likely than not incurred in or otherwise related to or aggravated by service. The examiner noted that STRs reflect a diagnosis of muscular strain in September 1980 and a diagnosis of pulled muscles on the lower left side of the back in August 1980. STRs reflect no further objective evidence of additional low back complaints or diagnosis. The January 1984 separation examination indicated a normal clinical evaluation of the spine. Therefore, the examiner stated that, although there was a record of treatment in service for lumbar muscular strain, there was no permanent residual of a chronic disability subject to service connection shown by the STRs or demonstrated by evidence following service. Treatment records reflect that the first complaint of low back pain after separation from service was in September 2007, 23 years after separation from service, which could not reasonably be connected to active duty service when there were multiple other aging, occupational, and daily activity factors in the intervening years. The examiner explained that back strains were muscular events and were episodes of acute back pain associated with specific activities or event, which were generally transient and self-limited, and responded to rest and medication. Different episodes occurred de novo, were caused by different activities at different times, and were not related to or caused by other prior episodes. Specifically, back strain did not cause degenerative disease of the spine. Rather, the examiner stated that degenerative changes in the spine were those that caused the loss of normal structure and/or function. They were not typically due to a specific injury, but rather due to age. Nearly everyone experienced some disk degeneration after the age of 40. When young, the disks were soft and served as a cushion for the vertebrae. With age, the material in these disks become less supple and the disks erode, losing some height. As they narrow, their ability to cushion the vertebrae decreases, resulting in changing the position of the vertebrae and the ligaments that connect them. As the vertebrae shift and affect other bones, the nerves could get caught or pinched, and muscle spasms could occur. As disk degeneration progressed, disks may become inflamed and collapse. In the late stages of spinal degeneration, bony spurs form and may lead to spinal stenosis, at which point the spinal canal became too small and pressed on the nerve roots, leading to pain and nerve dysfunction in the legs. DJD was a natural and normal wear-and-tear process of aging. A March 2020 VA addendum reflects that the October 2007 diagnosis of mild to moderate DDD at L4-L5 and May 2012 diagnosis of lumbar spondylolisthesis L4-5 status post L4-5 TLIF were likely correct considering their basis in objective imagery. The examiner stated that new information had been reviewed, and did not contain any evidence of a spinal disease during the Veteran's active duty service time. Therefore, this information was not relevant to the question of service connection, and did not warrant a change in the existing medical opinion. Analysis Based on a review of the evidence of record, the Board finds that the evidence weighs against finding in favor of the Veteran's service connection claim for a spine disorder as there is no evidence of a nexus to service. As an initial matter, the Board finds that the Veteran has a current diagnosis of DJD of the lumbar spine and L4-5 spondylolisthesis. Additionally, the Veteran's STRs reflect assessments of a pulled muscle on the left lower side of the back in August 1980 and muscular strain in September 1980. The Veteran also reported loading heavy weapons and ordinance during service, which "took a toll" on his back. See 7/27/16 SSA FL Department of Health Division of Disability Determinations Consultative Examination Report. However, although the Veteran contends that his DJD of the lumbar spine is related to service, specifically loading heavy weapons and ordinance, the VA examiners all opined that the Veteran's current spine disorder was less likely than not related to service. The July 2011 VA examiner addressed the in-service complaints and treatment for a pulled muscle and muscular strain, and opined that the current DJD of the lumbar spine was not the same condition as the in-service muscular strain. In a January 2016 VA addendum, the same examiner explained that the in-service muscle strain was less likely the cause of the current DJD as the Veteran was diagnosed with DJD many years after separation from service and as it was at least as likely as not the result of the normal aging process. The January 2020 VA examiner also thoroughly discussed that, although there was in-service treatment for a lumbar muscular strain, there was no permanent residual of a chronic disability shown by the STRs or demonstrated by evidence following service. She explained that back strains were muscular events and were episodes of acute back pain associated with specific activities or events, which were generally transient and self-limited, and responded to rest and medication. Different episodes were caused by different activities at different times, and were not related to or caused by other prior episodes. She found that the in-service muscular strain had resolved. Additionally, the examiner explained that back strain did not cause degenerative disease of the spine. Rather, degenerative changes of the spine were not typically due to a specific injury, but rather due to age and was a natural and normal wear-and-tear process of aging. There is no other evidence contrary to the VA examiners' opinions and findings, or indicating that the Veteran's spine disorder is related to his in-service complaints. The Board acknowledges the Veteran's report that loading heavy weapons and ordinance "took a toll" on his back. However, the January 2020 VA examiner stated that the Veteran's back disorder was not due to a specific injury, but was rather a natural and normal process of aging. While the Veteran is competent to report his symptoms, he is not competent to report a causal relationship between his disability and service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Rather, such a question is a medical matter requiring someone with medical training to resolve. The record does not show, and the Veteran does not contend, that he has specialized education, training, or experience that would qualify him to provide an opinion on the matter. The Board affords more weight to the medical evidence of record. Additionally, arthritis is a chronic disease under 38 C.F.R. § 3.309(a). However, the Veteran was first diagnosed with DJD of the lumbar spine at the July 2011 VA examination, 27 years after separation from service. As such, the evidence does not indicate that it manifested within one year from separation of service. The Board considers the Veteran's statement that he was unable to receive treatment after separation from service as he did not have health insurance. To the extent that he is contending that his symptoms were continuous during service and after separation from service, the Board finds the January 2020 VA examiner's rationale that muscular strains were episodes of acute back pain that responded to rest and medication and were not related to or caused by other prior episodes to be highly probative. Additionally, even during service subsequent to treatment for the muscular strain, the Veteran denied recurrent back pain, did not seek further treatment for his back, and had normal clinical evaluations of the spine. It was not until September 2007 when he injured his lower back while moving a ladder that he sought treatment for his back. Furthermore, as a layperson, the Veteran is competent to report matters within his own personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, the Veteran is competent to report that he experienced symptoms related to his back. However, he is not competent to provide a clinical diagnosis for such symptoms or opine as to etiology, as such a determination is medical in nature and requires medical expertise to make, and there is no evidence that the Veteran has such medical training. Consequently, the preponderance of the evidence is against a finding of service connection for a spine disorder. The benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disorder is remanded. A VA addendum is required in order to more fully evaluate and address the nature and etiology of the Veteran's claimed bilateral knee disorder. The Veteran contends that his bilateral knee disorder is related to service. At a January 2020 VA examination, he more specifically attributed his chronic knee pain to "loading bombs in the belly of airplanes during service." Unfortunately, the VA examiner opined that the Veteran's bilateral knee osteoarthritis was less likely than not caused by or a result of service as the separation examination was normal and silent for a knee disorder, the Veteran denied trauma to the knees, and there was no evidence of post-traumatic arthritis. Rather, the examiner explained that medical literature revealed that "the pathogenesis of osteoarthritis was much more complex than just wear-and-tear" and that there were "a variety of factors that played an important role in the pathogenesis of osteoarthritis, including biomechanical factors, proinflammatory mediators, and proteases." However, while osteoarthritis may be "much more complex" and affected by a "variety of factors," the examiner failed to specifically discuss the Veteran's contention that loading bombs in airplanes during service was related to his current bilateral knee disorder. In other words, the examiner provided general rationale to support his negative nexus opinion, but failed to address the specific facts of this case and the specific contentions raised by the Veteran. Although the Board regrets the delay, a VA addendum is needed in order to more completely evaluate the nature and etiology of the Veteran's bilateral knee disorder as it relates to service. 2. Entitlement to service connection for a groin and/or testicular disorder is remanded. The Veteran's service connection claim for groin and/or testicular disorder is remanded for a VA opinion. The Veteran was provided VA examinations in July 2011 and January 2020, and a January 2016 VA addendum was also obtained. However, at the January 2020 VA examination, the Veteran stated that his scrotum pain seemed to come from his knees, although not always. Unfortunately, the examiner only discussed the in-service diagnoses and treatment, as well as the onset of scrotal pain relative to separation from service. The examiner did not address whether the Veteran's groin and/or testicular disorder was caused by, aggravated by, or otherwise related to his bilateral knee disorder. As the knee claim is being remanded, the claim for groin and/or testicular disorder in inextricably intertwined. 3. Entitlement to service connection for a respiratory disorder is remanded. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). In March 2018, the Board remanded this issue for a VA addendum opinion to determine whether the Veteran's claimed respiratory disorder was related to service. Specifically, it instructed the examiner to identify, by diagnosis, all respiratory disabilities reflected in the record during the appeal period beginning May 2008. The remand instructions stated that the examiner "must discuss" the previous April 2011 diagnoses of bronchitis, sinusitis, and allergic rhinitis. The Veteran was provided a VA examination in January 2020, at which time the examiner merely stated that there was no objective evidence of a respiratory diagnosis, including bronchitis, sinusitis, allergic rhinitis, during service or in the evidence during the appeal period. Accordingly, the examiner rendered no opinions. However, the Board notes that the examiner did not address the April 2011 VA treatment records specifically reflecting diagnoses of sinusitis/allergic rhinitis and bronchitis. As such, an addendum is required in order to more completely address the etiology of Veteran's claimed respiratory disorder. The matters are REMANDED for the following actions: 1. Obtain another VA addendum by a VA examiner addressing the etiology of the Veteran's claimed bilateral knee disorder. If the designated examiner determines that an additional examination is necessary, one should be provided to the Veteran. After reviewing the claims file in its entirety and examining the Veteran, if necessary and possible, the examiner is asked to address the following with complete rationale: Provide an opinion as to whether the Veteran's bilateral knee osteoarthritis is at least as likely as not (50 percent probability or greater) incurred in, caused by, aggravated by, or otherwise related to service. *The examiner should address the Veteran's contention that his chronic knee pain was related to "loading bombs in the belly of airplanes during service." * A complete rationale should be given for any opinion rendered. 2. Obtain an addendum by a VA examiner to address the nature and etiology of the Veteran's groin and/or testicular disorder. If the designated examiner determines that an additional examination is necessary, one should be provided to the Veteran. After reviewing the claims file in its entirety, the examiner is asked to address the following with complete rationale: Provide an opinion as to whether the Veteran's claimed groin and/or testicular disorder at least as likely as not (50 percent or greater probability) is caused by, aggravated by, or otherwise related to the Veteran's bilateral knee disorder or any service-connected disability. The examiner must provide separate findings and rationales relating to causation and aggravation. The examiner is reminded that aggravation does not require that there be "permanent" worsening of the nonservice connected disability. A complete rationale should be provided for any opinion provided. 3. Obtain an addendum by a VA examiner to address the nature and etiology of the Veteran's claimed respiratory disorder. If the designated examiner determines that an additional examination is necessary, one should be provided to the Veteran. After reviewing the claims file in its entirety, the examiner is asked to address the following with complete rationale: a) Confirm all respiratory diagnoses and, if possible, the onset of each. *The examiner must discuss the previous diagnoses of bronchitis and sinusitis/allergic rhinitis. See 4/19/11 and 4/26/11 VA treatment records. If the examiner determines that the previous diagnoses were incorrect, s/he must clearly explain the rationale for such finding.* b) For each diagnosis, provide an opinion as to whether it at least as likely as not (50 percent or greater probability) had its onset during active service or was caused by, aggravated by, or otherwise related to it. A complete rationale should be provided for any opinions provided. 4. Thereafter, readjudicate the remanded claims on appeal. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee, 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.