Citation Nr: 21032065 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-35 029 DATE: May 25, 2021 ORDER Entitlement to service connection for a back disability is denied. REMAND 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. 5. Entitlement to individual unemployability is remanded. FINDING OF FACT The weight of competent, credible and probative evidence of record does not show that the Veteran's current back condition onset during or was caused by his military service. CONCLUSION OF LAW The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2020). REAONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from February 1969 to September 1970 including service in the Republic of Vietnam. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 correspondence, the Veteran specifically indicated that he does not waive RO consideration for relevant VA-generated medical evidence associated with the claims file subsequent to the July 2016 statement of the case (SOC). In November 2018 the Board reopened the claim and ordered a supplemental statement of the case (SSOC) to be provided. The Board finds that there has been substantial compliance with the previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service 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 may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. In general, service connection requires competent evidence showing: (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). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Laypersons, such as the Veteran, are competent to report on matters observed or within his or her personal knowledge, to include the occurrence of injury, and as to the nature, onset, and continuity of symptoms experienced or observed. See 38 C.F.R. § 3.159 (a)(2) (2017); Charles v. Principi, 16 Vet. App. 370 (2002). Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board, however, retains the discretion to determine the credibility and probative value of all evidence of record, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant 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 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for a back condition The Veteran contends that he has a back condition due to his military service. A review of his service treatment records show that the Veteran reported back pain on several occasions in March through June 1970. See November 204 STR-Medical, p. 21. The diagnosis was mild scoliosis, possible sciatica, and muscle strain, and treatment was with muscle relaxant medication, physical therapy (one session), and periods of light duty. He returned to full duty in July 1970. A September 1970 lumbar spine x-ray found no abnormality. Id at 19. (The Veteran was hospitalized in July 1970 for investigation of prostatitis.) The Veteran's separation Report of Medical Examination did not include any diagnosed back condition. Id at 51. However, the Veteran indicated recurrent back pain in his separation Report of Medical History, stating that he strained his back, received treatment, and that pain still persisted, but the examiner found no chronic disorder and did not attribute the recurrent muscle strain to the mild scoliosis and X-ray did not confirm sciatica. Id at 55-56. The Veteran submitted a claim of service connection in September 1970 and a VA examination was performed in November 1970. The Veteran stated that he injured his back lifting a heavy object in 1965 and that he reinjured his back while lifting heavy objects in service. The Veteran reported back pain every other day. The examiner diagnosed lumbosacral strain by history. Another X-ray was normal. The RO denied Veteran's claim in December 1970. The Veteran did not appeal within one year, so the denial became final. The Veteran filed an application to reopen the claim in September 2014 and a VA examination was performed in February 2015. An examiner diagnosed lumbosacral strain. The Veteran reported that he experienced lumbar strain in service, but was subsequently reinjured while performing a civilian job, resulting in disc herniation and discectomy. The VA examiner opined that it was less likely than not that the Veteran's back disorder was caused by his military service, stating: "It is less than 50% likely that his back pain is due to his injury in service and more likely due to his lifting injury out of service that resulted in him requiring a discectomy." See February 2015 C&P Exam. The RO denied the Veteran's claim. He submitted a timely notice of disagreement (NOD) and perfected his appeal via VA Form 9. In November 2018 the Board reopened the Veteran's claim, and an SSOC was provided in June 2020. The claim is now properly before the Board. The Board finds that the Veteran's claim meets the first element of service connection, as he has been diagnosed with lumbosacral strain during the appellate period. Furthermore, the second element of service connection is met, as the record shows that he experienced lumbar strain in service. However, the claim must be denied as the third element of service connection, a medical nexus between his current condition and military service, has not been met. The Board affords significant probative value to the findings of the November 1970 and February 2015 VA examiners, as the examiners reviewed the Veteran's medical records, considered his lay statements and provided a rationale based upon the record. No competing positive nexus opinions are of record. Accordingly, the Board finds the Veteran's claim must be denied on the grounds that the criteria for the third element of service connection have not been met. The Board acknowledges the Veteran's belief that his back condition was caused by his military service. However, the Veteran has not been shown to have the requisite education, skills and experience to provide a medical nexus opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The benefit-of-the doubt doctrine is not for application, and the claim for service connection for a back condition must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS AND BASES FOR REMAND The Veteran has claimed entitlement to service connection for upper and lower bilateral neuropathy. The Veteran has never been afforded a VA examination to assess these claims. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court set forth the criteria considered when determining whether a VA examination is necessary to assist in establishing service connection on a direct basis. The Court held that a VA examination is warranted when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; and, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and, (3) an indication that the disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran's active military service...; but, (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. Id. at 81. In the present case, the Veteran has been diagnosed with sciatica during the appellate period, which meets the first McLendon factor. Furthermore, the record shows that the Veteran served in Vietnam and is presumed to have been exposed to the designated herbicide agents. Early onset peripheral neuropathy is listed as a disease presumptively associated with this exposure. 38 C.F.R. § 3.309 (e). Even if the presumption does not apply, the Veteran may still be eligible for service connection on a direct basis. The Board finds that without a VA examination to identify the etiology of the Veteran's conditions, the record does not contain sufficient competent medical evidence for a decision to be made. Therefore, a remand is required. Finally, the Board finds that the Veteran's claim of entitlement for TDIU is inextricably intertwined with the issue of service connection for upper and lower bilateral peripheral neuropathy. Therefore, a final decision on the issue of entitlement for TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: Afford the Veteran a VA examination to determine the etiology of his currently diagnosed sciatica and his claimed peripheral neuropathy. The examiner should review the claims folder and acknowledge such review in the examination report or in an addendum, and any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed sciatica and/or peripheral neuropathy is related to the Veteran's active military service, including exposure to herbicide agents. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B , 7112 (West 2012). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.