Citation Nr: 21029186 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-06 262 DATE: May 12, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disorder was not incurred in service, is not otherwise causally or etiologically related to service, and arthritis did not manifest within one year of service discharge. 2. The Veteran's hypertension was not incurred in service, is not otherwise causally or etiologically related to service and did not manifest within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1976 to April 1979 and from April 1979 to December 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs Regional Office (RO). The Veteran subsequently appealed his case to the Board in May 2012 by filing a timely Notice of Disagreement (NOD). These matters previously came before the Board in April 2019, whereupon it was remanded to allow for additional development, to include obtaining a new VA examination for hypertension and an addendum opinion for the Veteran's lumbar spine disorder. VA obtained an adequate hypertension examination and addendum opinion for back disorder in November 2019, in accordance with the remand directives. Therefore, the Board finds that there has been substantial compliance with its remand directives, and no further action in this regard is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters have now returned before the Board for further appellate action. The Board notes the general arguments by the Veteran's representative in the May 2021 Informal Hearing Presentation that the VA etiology opinions were inadequate. Specifically, they contend that the VA examiner failed to provide an etiology opinion that dealt with causation and aggravation as independent concepts and that the examiner failed to provide analysis that can be weighed against contrary opinions. However, there is no allegation regarding secondary service connection in this case and service connection is not in effect for any disability. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). The Board notes that the November 2019 VA examiner provided an etiology opinion with an adequate rationale and that there is no contrary probative opinion of record. These arguments are therefore without merit. Service Connection Provisions Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110, 1131. Generally, to establish direct service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis and cardiovascular renal disease, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a lumbar spine disorder is denied. The Veteran generally contends that his lumbar spine disorder is result of his service, to include a fall from a helicopter during the course of his military duties, while in-service. Specific argument in support of this appeal has not been presented. Service treatment records include a December 1979 service treatment note reflects the Veteran's complaints of low back pain after being in the field. A September 1983 treatment note reflects the Veteran's complaints of low back pain and that he first injured his back after falling from a bridge three years ago; an assessment of arthritic back pain was made. A May 1984 discharge examination found the Veteran's back to be normal. Post-service treatment records include a September 1999 private treatment note found the Veteran to be normal and healthy while an October 2001 private treatment note indicates that the Veteran had a normal physical. An October 2002 private treatment note indicates that the Veteran presented for an annual examination and there were no complaints related to the back. A September 2004 private treatment note reflect complaints of back pain for one week after falling off of his sofa and assessment of an acute cervical strain was made in a September 2004. An October 2006 private treatment note reflects the Veteran's complaints of back pain for two weeks and an assessment of an acute lumbosacral strain and low back pain was made. A May 2012 private Disability Benefits Questionnaire (DBQ) report indicates that the Veteran had been diagnosed with lumbago in May 2012. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested arthritis to a degree of 10 percent within the one year following his discharge from service in December 1984. The clinical evidence reflects the Veteran's complaints of back pain for two weeks in October 2006. As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran was provided a VA examination for his back in May 2011. The examination revealed a back spasm. However, the examiner expressed an inability to opine on the etiology of the back disorder without resorting to mere speculation, because the Veteran's file did not contain evidence to corroborate his fall from a helicopter or his injuries suffered as a result of that fall. However, the Board found this opinion inadequate in its April 2019 remand as the Veteran's file did indeed contain service treatment records corroborating the Veteran's injury and treatment during service. Specifically, the service treatment records show that the Veteran was treated on multiple occasions for back pain after the helicopter fall. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). As this opinion is based on an inaccurate factual premise, it is afforded little, if any, probative weight. The Veteran was subsequently provided a new VA examination and opinion in November 2019. The examiner opined that it was less likely than not that the Veteran's lumbar spine disorder was incurred in or caused by the Veteran's helicopter fall in-service. The examiner offered the rationale that the Veteran's in-service back pain had been isolated and had since resolved, being unrelated to the back disorder diagnosed in 2012, more than three decades later. The examiner further reasoned that the service treatment records indicate that there was an isolated episode of low back pain and that there was no evidence of recurring or chronic back complaints or continued treatment to establish chronicity. The examiner further opined that the Veteran's separation examination in 1984 was silent for back issues and that degenerative arthritis of the spine is related to aging. The Board finds that the VA opinion is adequate and highly probative as the examiner predicated his opinion and rationale on an accurate reading of the service treatment records as well as the medical and lay evidence contained in the Veteran's claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the Board gives great probative weight to this opinion. There is no contrary opinion of record. The Board notes that although the November 2019 examiner used the phrase "isolated episode," despite the record showing several complaints/treatment for back pain in-service, i.e. in 1983; the Board notes that the record is entirely silent for back pain after 1983, for nearly three decades, until 2010. Thus, the Board finds that the evidence supports the examiner's opinion of a lack of chronicity and a finding that the in-service back issues were isolated to his service, and were not related to the Veteran's current disability, first diagnosed nearly three decades after service. Additionally, the Board notes that a negative inference may be drawn from the absence of complaints or treatment for an extended period. The lengthy absence of treatment between 1983 and 2010 tends to weigh against the Veteran's claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a medical nexus. The Veteran contends that his in-service helicopter injury led to his current back disorder. As a lay person, the Veteran is competent to report observable symptoms, such as back pain. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability"); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. However, while the Veteran is competent to report having experienced symptoms of a back condition, he is not competent to opine on the etiology of the condition and/or to determine that these symptoms are somehow related to either his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Upon a thorough review of the record, and placing probative emphasis on the adequate VA medical opinion on record, the Board finds that evidence does not rise to at least equipoise for the Veteran's claim for service connection for a lumbar spine disorder. Indeed, the record does establish that the Veteran suffers from a current back disorder and that he suffered a fall from a helicopter in-service. However, the probative evidence of record does not establish a medical nexus between the Veteran's current lumbar spine disorder and his in-service helicopter fall. In addition to providing a negative nexus opinion, the November 2019 VA examiner offered an alternate etiology for the Veteran's condition, opining that it was likely related to ageing factors instead of an in-service fall. Therefore, as the preponderance of the evidence is against the Veteran's claim for service connection, the Board finds that the Veteran's claim must be denied. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Entitlement to service connection for hypertension The Veteran generally contends that his hypertension is the result of his service. Specific argument in support of this appeal has not been presented. Service treatment records document multiple blood pressure readings but are otherwise negative for complaints, treatments or diagnoses related to hypertension. A May 1984 service discharge examination found the Veteran's blood pressure to be 110/70. Post service treatment records reflect that the Veteran denied hypertension in a September 1999 private treatment note. A May 2001 private treatment note reflects the Veteran's complaints of dizziness and headaches and an assessment of uncontrolled hypertension. A May 2012 private hypertension DBQ report indicates that the Veteran was diagnosed with hypertension in June 2010. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested hypertension to a degree of 10 percent within the one year following his discharge from service in December 1984. The clinical evidence reflects an assessment of uncontrolled hypertension. As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct service connection, a November 2019 VA examiner opined ess likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness as the service treatment records indicate an isolated episodes of high blood pressure of 96 in August 1983. The examiner noted that the Veteran was diagnosed with hypertension in 2010, that there was a lack of chronicity in the records and that the Veteran's military separation examination in 1984 was also silent for hypertension. The Board finds that the VA opinion is adequate and highly probative as the examiner predicated his opinion and rationale on an accurate reading of the service treatment records as well as the medical and lay evidence contained in the Veteran's claims file. See Nieves-Rodriguez v. Peake, supra. Consequently, the Board gives great probative weight to this opinion. There is no contrary opinion of record. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a medical nexus. As a lay person, the Veteran is competent to report observable symptoms, such as pain or difficulty breathing. See Washington v. Nicholson, supra; see also Barr v. Nicholson, supra; Layno v. Brown, supra. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Nicholson, supra. However, the Veteran is not competent to opine on the etiology of his hypertension and/or to determine that his symptoms are somehow related to either his active service. See Jandreau v. Nicholson, supra. Upon a thorough review of the record, and placing probative emphasis on the adequate VA medical opinion on record, the Board finds that evidence does not rise to at least equipoise for the Veteran's claim for service connection for hypertension. Indeed, the record does establish that the Veteran suffers from current hypertension. However, the probative evidence of record does not establish a medical nexus between the Veteran's current hypertension and his service. A November 2019 VA examiner provided a negative etiology opinion and there is no contrary opinion of record. Therefore, as the preponderance of the evidence is against the Veteran's claim for service connection, the Board finds that the Veteran's claim must be denied. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.