Citation Nr: 21030420 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-15 256 DATE: May 18, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's lumbar spine disability was incurred in service and/or manifested to a compensable degree within one year of discharge from service. 2. The evidence of record does not demonstrate that the Veteran has had a diagnosis of diabetes mellitus, type II, at any time since the filing of this claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1967 to February 1968 and from August 1970 to October 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2016. A copy of the transcript has been reviewed and associated with the claims file. These matters were before the Board in October 2018, at which time they were remanded for additional evidentiary development. The Board notes that pursuant to its remand instructions, the RO sent a letter to the Veteran in September 2019 requesting information and signed releases for any private treatment in reference to diabetes mellitus and/or lumbar spine disabilities. To date, the Veteran has yet to provide sufficient information identifying any private treatment for his pending claims. Accordingly, the Board will proceed with adjudicating the pending claims. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection the evidence 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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, even though there is no record of such disease during service unless the presumption is rebutted. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307 (d), 3.309(e). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). When 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a lumbar spine disability In the present case, the Veteran has been assessed with degenerative arthritis of the spine, intervertebral disc syndrome, and spondylolisthesis (lumbar spine disability). Thus, a current disability has been established by the evidence. The Veteran's complete service treatment records from August 1970 to October 1971 are unavailable for review. A formal finding of unavailability was submitted by the VA in March and December 2012. The Veteran submitted an April 1971 profile for a low back strain. He was restricted from prolonged handling of materials and overhead work for two weeks. He testified at the hearing in November 2016 and indicated that he suffered two injuries to his lower back in service. Thus, in-service incurrences have been established by the evidence. Having established a current disability and in-service incurrences, the remaining question is whether the Veteran's current lumbar spine disability is related to service. The Veteran's treatment records reveal that he underwent a laminectomy and discectomy at L5-S1 in 1983 and 1990 following two work injuries. The Veteran testified at the hearing and noted that he sought medical treatment for his lower back after service and prior to his post-service work injuries. The Veteran underwent a VA examination in January 2014, at which time he was assessed with degenerative arthritis of the spine. The examiner noted that he was assessed with a lower back strain in April 1971 and was given a two-week profile to recover from the muscle strain. There were no further records of any back problems until 1984 when he had a post-military work injury and suffered a herniated disc. Accordingly, it was less likely that the Veteran's herniated disc was due to his remote back strain in 1971 and likely related to his post-military job injuries. The Veteran was afforded a VA examination in December 2019, at which time he was assessed with degenerative arthritis of the spine, intervertebral disc syndrome, and spondylolisthesis. The examiner concluded that his current lumbar spine disabilities were not related to service. She reasoned that his documented April 1971 sprain was acute in nature and more than likely resolved on its own within a few weeks given that he was able to continue on active duty for an additional six months. He had two documented work injuries in 1983 and 1989 that ultimately resulted in lumbar surgeries, which were more than likely the cause of his long-term back pain and current symptoms. Accordingly, it was less likely than not that his degenerative arthritis of the spine and degenerative joint disease status post laminectomy and discectomy was the result of his time in service. A VA medical opinion was issued in December 2020. The examiner conducted a review of the record and concluded that it was more likely than not that the Veteran's current lumbar disabilities had their onset in 1984 following his work-related injuries. The examiner noted that the Veteran received a two-week profile in April 1971 for a lumbar strain but explained that a lumbar strain does not cause degenerative spine disease. He clearly suffered an acute injury in 1984, which caused a disc herniation, and led to his subsequent lumbar spine surgeries and current lumbar spine disabilities. Accordingly, the examiner opined that his current lumbar spine disability was not the result of service. After a review of the evidence, the Board finds that service connection is not warranted for the Veteran's lumbar spine disability. In this regard, although the Veteran suffered a lumbar strain in service, there is no evidence that his current lumbar spine disabilities, including degenerative arthritis of the spine, is related to service. Rather, there is ample evidence that he injured his back twice post-service at work in 1983 or 1984 and 1990. These work injuries led to two laminectomy and discectomy surgeries, which led to his subsequent degenerative arthritis of the spine. As set forth by the January 2014, December 2019, and December 2020 VA examiners, there is no evidence that his current degenerative arthritis of the spine and degenerative joint disease status post laminectomy and discectomy was the result of his time in service. Moreover, there is no evidence that the Veteran's degenerative disc disease manifested to a compensable degree within one year of his separation from service. The Board acknowledges the Veteran's assertions that he sought treatment for his back following service and prior to his post-service work injuries. Although in some cases a lay person is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination that his current lumbar spine disability was incurred in service is a medical question and not subject to lay expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Moreover, to the extent that he asserts continuity of symptomatology, the absence of earlier records is not itself fatal to the claim. However, the treatment records fail to indicate a history of back problems prior to the post-service work injuries. It is noted that a medical history provided in the course of receiving treatment is deemed highly reliable and in this case is found to outweigh the history reported at the Board hearing, much later in time and outside the context of seeking medical care. In sum, the Board finds that the preponderance of the evidence is against the award of service connection for the Veteran's lumbar spine disability. 2. Entitlement to service connection for diabetes mellitus, type II The Veteran asserts that he has been diagnosed with diabetes mellitus, type II, which is related to his exposure to Agent Orange in service. Pursuant to VA regulations, a veteran who served in active military service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, are presumed to have been exposed during that time period to Agent Orange. See 38 C.F.R. §§ 3.307(a)(6)(iv), 3.814(c)(2). In the present case, in a May 2013 memorandum, the VA conceded exposure to herbicides based on his service along the DMZ in Korea during the relevant time frame. However, after a review of the evidence, the Board finds that the Veteran did not have a current diagnosis of diabetes mellitus, type II. Throughout the rating period on appeal, the Veteran's treatment records reveal that he has been prescribed Metformin for prediabetes. In a May 2019 letter to the Veteran from VA, he was informed that he had prediabetes and without intervention it would likely become type 2 diabetes within 10 years. VA examinations were performed in December 2013, January 2014, and December 2019. The examiners found that he did not have a diagnosis of diabetes mellitus type II. Rather, he was assessed with prediabetes based on increased glucose levels that did not meet the criteria for a diagnosis of diabetes mellitus, type II. The Board acknowledges the notations in the Veteran's VA treatment records of a past medical history of diabetes mellitus, type II. However, as set forth, the competent medical evidence of record reveals that the Veteran has been assessed with prediabetes but does not yet meet the criteria for a diagnosis of diabetes mellitus, type II. (Continued on the next page) In sum, the preponderance of the evidence is against the claim, the benefit-of-the doubt doctrine does not apply, and the claim of service connection for diabetes mellitus, type II, must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. (Hurley) Merrick 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.