Citation Nr: 21030447 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-23 554 DATE: May 18, 2021 ORDER Service connection for a low back disability is denied. Service connection for bilateral sciatica, to include as secondary to a low back disability, is denied. FINDINGS OF FACT 1. The Veteran's low back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence is against a finding that the Veteran has bilateral sciatica, to include pain that causes functional impairment of earning capacity, during the pendency of his claim. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a low back disability 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 an award of service connection for bilateral sciatica have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1975 to March 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2012 and May 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This case was previously before the Board in March 2016, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for a low back disability is denied. The Veteran seeks to establish service connection for a low back disability. He contends that he has a low back disability stemming from heavy lifting in service and an injury during training at Camp Pendleton. The question for the Board is whether the Veteran has a current low back disability that began during service or is at least as likely as not related to an in-service injury or disease. There is no dispute that the Veteran has a current low back disability. A May 2016 VA examination report reflects diagnoses of degenerative arthritis of the spine and degenerative lumbar disc disease. As to whether there is a nexus, or a link, between the Veteran's current disability and service, the Board notes that the Veteran is competent to report in-service injuries; however, his service treatment records contain no complaints of, treatment for, or diagnosis of a low back disability. Additionally, the service enlistment and separation examinations gave no indication of abnormalities of the back or spine. VA treatment records dated in June 1997 show that the Veteran presented for treatment with complaints related to his low back. Specifically, the Veteran reported sharp low back pain over the previous two to three days and attributed it to lifting heavy objects at work. VA treatment records dated in October 2012 indicate that the Veteran continued to suffer from back pain. He attributed the back pain to a training accident at Camp Pendleton and suggested that pain has continued since, including in the sides, legs, and buttocks. The Veteran was afforded a VA examination in May 2016. After examining the Veteran and reviewing the record, the examiner opined that the Veteran's current low back disability was less likely than not related to service. The examiner reasoned that the Veteran had no documented acute or chronic back disability or treatment in service, to include on examination at service separation. The examiner noted a June 1997 treatment record indicating that the Veteran complained of back pain after lifting a heavy object. The examiner concluded that the low back disability is more likely from his heavy-duty post-service civilian job, as well as generalized degeneration due to age. The Board finds that the May 2016 VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no contrary medical opinion of record. The Board has considered the Veteran's July 2016 statement that the May 2016 examiner did not communicate well with him and did not perform repetitive movement testing. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999); see also Ashley v. Derwinski, 2 Vet. App. 307 (1992) (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). A claimant's mere statement that he submitted a document to VA is insufficient for that purpose. Fithian v. Shinseki, 24 Vet. App. 146, 151 (2010). The Board finds that the presumption of regularity on behalf of the May 2016 VA examiner has not been rebutted in the present case. Indeed, the VA examiner noted the Veteran's history, and recorded specific low back range of motion measurements, including as due to pain. The examiner also indicated that the Veteran was able to perform repetitive use testing and that there was no additional loss of function or range of motion after three repetitions. This indicates that the VA examiner not only communicate with the Veteran, but also examined him and recorded the results of such examination. Aside from the Veteran's complaints, the record contains no evidence of bias or incompetence of the May 2016 VA examiner to indicate that the examiner did anything other than record objective clinical findings after examination of the Veteran. Therefore, the Board finds no evidence to support the Veteran's complaints to overcome the presumption of regularity with respect to the May 2016 VA examination. Fithian, 24 Vet. App. at 151. The Board has also considered the authorized representative's assertions in the April 2021 informal hearing presentation that the May 2016 VA examination is inadequate because the examiner relied solely on lack of evidence in providing the negative nexus opinion. However, as noted above, the examiner did not solely rely on the absence of evidence in providing the negative nexus opinion. Specifically, the examiner reviewed the Veteran's records, noted the Veteran's June 1997 post-service complaint of low back after lifting a heavy object, and attributed the current low back disability to that incident, as well as degeneration from the aging process. Accordingly, the Board finds that the authorized representative's assertions in the April 2021 informal hearing presentation are without merit. The Board has considered the Veteran's statements in this regard, specifically those purporting to attribute his low back disability to a training accident at Camp Pendleton. In May 2012, the Veteran suggested that he did not report the injury during service believing it to be minor. However, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent nexus opinion with respect to medically complex matters relating to the etiology of his current low back disability as it relates to an incident in service more than 30 years ago. The issue is medically complex, as it requires knowledge of the musculoskeletal system and the development of degenerative arthritis of the spine and degenerative lumbar disc disease decades after service separation. The record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the May 2016 VA examiner's opinion. The Veteran's lumbar degenerative arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. To the extent the Veteran's current statements can be interpreted as alleging continuity of symptoms since service, such is inconsistent with what he reported during service separation in March 1979, when he denied having recurrent back pain. Moreover, a June 1997 private hospital record noted that the Veteran reported that he had back pain for the previous two to three days. As such, the Board finds his assertions of continuity lack credibility. That is not to say that he is willfully manufacturing facts; only that his current recollection of events is at odds with what he reported previously. There is otherwise no competent and probative evidence that the Veteran's current lumbar degenerative arthritis was manifested to a degree of 10 percent or more within one year of separation from service, or that it is otherwise related to service. As such, service connection on a direct and presumptive basis is not warranted. In view of the foregoing, the Board must find that the preponderance of the evidence is against the Veteran's claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 2. Entitlement to service connection for bilateral sciatica, to include as secondary to a low back disability, is denied. The Veteran seeks to establish service connection for bilateral sciatica. He asserts that the disability is secondary to his low back disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The United States Court of Appeals for the Federal Circuit has held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. Notably, a current disability cannot be shown by subjective pain alone, but there must be some functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the present case, there is no evidence that the Veteran has bilateral sciatica or has had such a disability at any time during the pendency or proximate to the filing of his claim. 38 U.S.C. § 1110; 5107(b), 38 C.F.R. § 3.303(a), (d). He did not submit any medical evidence, or a release for such evidence, to support the existence of a current disability. Nor has he asserted the presence of a current functional impairment relating to bilateral sciatica that resulted in loss of earning capacity. A May 2016 VA examination explicitly found no current diagnosis of sciatica or lumbar radiculopathy. To the extent that the Veteran asserts such a disability in his lay statements of record, the Board finds that such statements are of no probative value in the context of the Veteran's claims, as the Veteran does not possess, as a layperson, the medical expertise required to diagnose such internal and complex neurological condition such as a sciatica. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran having a current disability such as sciatica, to include pain that causes functional impairment of earning capacity, and this claim is denied due to a finding of no current disability. Even assuming arguendo that the Veteran has a current diagnosis of sciatica as due to his low back disability, the Board has denied herein the Veteran's claim for service connection for a low back disability. As such, service connection for a sciatica on a secondary basis is not warranted because there is no primary disability upon which secondary service connection may be granted. See 38 C.F.R. § 3.310. Based on the foregoing, the Board must find that the preponderance of the evidence is against the Veteran's claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.