Citation Nr: 21040136 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 09-02 065 DATE: July 2, 2021 ORDER Entitlement to service connection for a low back disorder, characterized as degenerative arthritis, spondylosis, spinal and neuroforaminal stenosis, and intervertebral disc syndrome of the lumbar spine, is denied. REMANDED Entitlement to a rating in excess of 10 percent for a right tibia stress fracture is remanded. Entitlement to a rating in excess of 10 percent for a left tibia stress fracture is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's low back disorder, characterized as degenerative arthritis, spondylosis, spinal and neuroforaminal stenosis, and intervertebral disc syndrome of the lumbar spine, was not shown in service or for many years thereafter and is not otherwise related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder, characterized as degenerative arthritis, spondylosis, spinal and neuroforaminal stenosis, and intervertebral disc syndrome of the lumbar spine, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1984 to May 1990, from August 1990 to November 1990, and from January 1991 to April 1991. These matters return to the Board of Veterans' Appeals (Board) following the issuance of a Joint Motion for Remand by the Court of Appeals for Veterans' Claims (CAVC) in January 2018, and a subsequent Board remand in June 2018 which directed the Regional Office (RO) to undertake additional development. Service Connection The law provides that service connection may 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, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, including arthritis of the spine, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). 1. Entitlement to service connection for a low back disorder, characterized as degenerative arthritis, spondylosis, spinal and neuroforaminal stenosis, and intervertebral disc syndrome of the lumbar spine The Veteran is seeking service connection for a low back disorder, characterized as degenerative arthritis, spondylosis, spinal and neuroforaminal stenosis, and intervertebral disc syndrome of the lumbar spine. She generally claims that her low back symptoms began in service. However, following a review of the evidence of record, the Board finds that the Veteran's claim should be denied. As an initial matter, the remand issued by the CAVC requested that the Board attempt to obtain more of the Veteran's service records, most notably her entrance and separation examinations. The Board remanded the Veteran's claims to the RO in an effort to obtain these records. The RO was able to obtain the Veteran's April 1991 separation examination from one of her private physicians. However, the RO was unable to obtain any further records. The Veteran's file shows that multiple attempts were made by the RO to obtain the noted records and that all efforts were exhausted in this search. The Board concurs with this finding from the RO and determines that another remand order to search for these records would be futile. The Veteran's service treatment records are silent for any signs, symptoms, treatment, or a diagnosis of a chronic low back disorder. While the Veteran's records indicate isolated back pain treatment in May 1985, there is no further treatment for her back and no indication of a chronic disorder. Indeed, a May 1989 periodic examination is silent for a low back disorder. The Veteran's separation examination and report of medical history from April 1991 are both silent for any indication of a low back disorder. In fact, the Veteran indicated that she was in good health and not taking medication for any conditions, including back pain. It is important to note that the Veteran was afforded the opportunity to list any disorders at the examination or in her report of medical history but chose otherwise. The Veteran's post-service medical records do not reflect signs or treatment of a back disorder until August 2006 when the Veteran was diagnosed with moderate stenosis, spondylosis, and degenerative disc disorder. Such a large gap, approximately 15 years, between separation from service and the Veteran's initial treatment and diagnosis weighs against finding a direct link between the Veteran's service and her back disorder. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). To the extent that the Veteran asserts that she has experienced low back pain since service, the Board is unable to grant service connection based on these statements alone. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Specifically, the Board notes that the appellant filed claims for VA benefits for many disorders in the years prior (1992 to 2006) to her initial claim for a service connection for a low back disorder. She has attested that her symptoms have existed since active duty. The fact that the appellant was aware of the VA benefits system, but did not submit a claim for service connection for the disorder she claims now weighs heavily against her credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). The Board notes and acknowledges the statements from the Veteran regarding continuous symptoms. However, the Board is unable to grant service connection purely on her statements alone. Specifically, while the Veteran has asserted continuous symptoms, the medical evidence of record weighs heavily against her testimony. Therefore, based on the clinical evidence of record, service connection cannot be established through continuity of symptomatology or the Veteran's statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Additionally, continuity of symptoms has not been shown based on the clinical evidence, to include the chronic disease presumption under 38 C.F.R. § 3.307 (a)(3). Next, although the Veteran is not competent to diagnose and provide etiological opinions related to the disorder on appeal, service connection may nonetheless be established if a relationship is otherwise demonstrated by competent evidence, including medical evidence and opinions. Nevertheless, the competent evidence fails to establish a relationship between active duty and the Veteran's current symptoms. To this end, the Veteran was provided with VA examinations to determine the nature and etiology of her low back disorder in January 2012 and March 2016. At the January 2012 examination the examiner noted and endorsed diagnoses of degenerative disc disease, degenerative joint disease, and IVDS of the lumbar spine. The Veteran reported that her symptoms began in 1985 while in service and that she experiences flare-ups. The examiner opined that the Veteran's low back disorders were less likely than not related to service citing the lack of a diagnosed chronic disorder in service or for many years after her separation. They indicated that the Veteran's low back disorders were likely due to the natural aging process. Next, at the March 2016 examination the examiner endorsed diagnoses of several low back disorders with initial diagnosis dates as 2006. The Veteran reported gradual onset low back pain beginning in 1985. She indicated that she was diagnosed with low back strain and given NSAID medication to treat and that there was never any further treatment in service. The examiner opined that the Veteran's current low back disorders were less likely than not related to active duty service. The examiner noted that by the Veteran's own statements, she was never diagnosed with a chronic condition in service and her service records are otherwise silent for any indications of such a disorder. The examiner also cited the more than 20 visits to VA medical facilities between the Veteran's separation and her 2006 diagnosis where there was no indication of a back disorder either observed by a treating physician or expressed by the Veteran herself. The examiner did note some treatment for acute strains but indicated that these could not be indicative of disorders such as the Veteran's. To date, the Veteran has not submitted any evidence in support of low back service connection claim including private opinions or examinations. For the foregoing reasons, the Board cannot find that service connection for a back disorder is warranted in this case. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating her back disorder to her active duty service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of her lumbar disorders. See Jandreau, 492 F.3d at 1377, n.4. Although she can provide competent testimony regarding symptoms, these are not disorders that can be diagnosed by unique and identifiable features as they do not involve simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Thus, to the extent that the Veteran believes that her lumbar disorder, is related to her active duty service, she is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. Accordingly, service connection for a lumbar disorder is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a right tibia stress fracture 2. Entitlement to a rating in excess of 10 percent for a left tibia stress fracture 3. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran is seeking higher ratings for her bilateral tibia stress fractures (shin splints) as well as for TDIU. The Board determines that additional development is necessary for the proper adjudication of the Veteran's increased rating claims for her bilateral tibia stress fracture. Additionally, as her entitlement to a TDIU could be impacted by the development for the former claims, it similarly must be remanded to the RO. The Veteran was last provided with a VA medical examination to evaluate the severity of her bilateral shin splints in October 2014, almost seven years ago. The Board finds that a new examination is necessary to determine the current severity of those disorders so that it may properly adjudicate the Veteran's increased rating claims. 38 U.S.C. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the Veteran's increased rating claims for bilateral shin splints are remanded. As for the Veteran's claim of entitlement to a TDIU, this is inextricably intertwined with her increased rating claims, thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. The Regional Office (RO) should invite the Veteran to submit any additional evidence in support of her claim. Obtain any treatment records from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, she should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for new VA examinations, with an appropriate clinician, to determine the current severity of her bilateral shin splints. Full range of motion testing must be performed in both active and passive motion, in weightbearing and non-weightbearing with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, they should clearly explain why that is so. The examiner should address in detail the additional functional impairment and range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups for each disability. The examiner should estimate any additional loss of motion to the best of their ability. All opinions should be accompanied by adequate reasons and bases. If it is not possible to provide a specific measurement without speculation, the examiner(s) should state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. The RO should undertake any other development deemed necessary in order to readjudicate the Veteran's increased rating claims for her bilateral shin splints. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor