Citation Nr: 21040421 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-65 178 DATE: July 3, 2021 ORDER Entitlement to service connection for a thoracolumbar spine disorder is denied. Entitlement to service connection for a cervical spine disorder is denied. Entitlement to service connection for a left upper extremity disorder is denied. Entitlement to service connection for a bilateral eye disorder, diagnosed as cataracts and drusen (loss of visual acuity), is denied. REMANDED Entitlement to service connection for a left leg disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a thoracolumbar spine disorder related to active service or events therein; and there is no evidence of thoracolumbar spine arthritis manifested to a compensable degree within one year following discharge from active service. 2. The preponderance of the evidence is against finding that the Veteran has a cervical spine disorder related to active service or events therein; and there is no evidence of cervical spine arthritis manifested to a compensable degree within one year following discharge from service. 3. The preponderance of the evidence is against finding that the Veteran has a left upper extremity disorder related to active service or events therein; and there is no evidence of left carpal tunnel syndrome manifested to a compensable degree within one year following discharge from service. 4. The preponderance of the evidence is against finding that the Veteran's bilateral cataracts and drusen began during or are otherwise related to active service or events therein. CONCLUSIONS OF LAW 1. The criteria for service connection for a thoracolumbar spine disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for a left upper extremity disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for a bilateral eye disorder, diagnosed as cataracts and drusen (loss of visual acuity), have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1961 to December 1962. In March 2019, the Board denied service connection for a thoracolumbar spine condition and for left leg pain. The Board remanded claims of entitlement to service connection for a cervical spine condition, left upper extremity neuropathy, and loss of visual acuity. The Veteran appealed the Board's decision and by Order dated in February 2020, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (joint motion). The Court vacated that portion of the Board's decision that denied service connection for the thoracolumbar spine and left leg. Pursuant to the joint motion, the parties agreed that partial vacatur and remand were warranted because the Board erred when it failed to fulfill its duties under the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the Board failed to address or correct the RO's failure to provide notification in accordance with 38 U.S.C. § 5103A. This error required remand for the Board to direct issuance of proper and legally sufficient notice to the appellant. Remand was also warranted because VA was put on notice of the existence of relevant records which were not requested (records from the VA Medical Center (VAMC) Syracuse dated in the 1960's) and the Board must direct a new records request. In August 2020, the appeal was remanded for further development as to all issues. The Board acknowledges that further notification pursuant to the VCAA was not directed. Notwithstanding, review of the claims folder shows that in December 2017, the Veteran was provided with appropriate VCAA notice. Specifically, this letter advised the Veteran as to what information he was responsible for providing and what information VA would obtain. He was also provided notification as to what the evidence must show to substantiate a service connection claim. The Veteran submitted a "38 U.S.C. § 5103 Notice Response" indicating that he had enclosed all the remaining information or evidence that would support his claim, or he had no other information or evidence to provide. He asked that VA decide his claim. As to the additional records, pursuant to the August 2020 remand, VA requested that all the Veteran's medical records from VAMC Syracuse during the 1960's be obtained and associated with the claims file. Response received in January 2021 indicates that no records were found. VA subsequently notified the Veteran that these records could not be located and were considered unavailable. On review, the Board finds substantial compliance with the joint motion and subsequent remands. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). Entitlement to service connection for a thoracolumbar spine disorder In January 2017, the Veteran claimed a lower and upper spine condition and indicated that he "drove tank no seat comfort". He appears to generally associate his back condition with military duties. Service treatment records are negative for complaints or findings related to the back. On separation examination in September 1962, the Veteran's spine was reported as normal on clinical evaluation. On the associated report of medical history, he indicated that he was in very good health and complaints related to the upper and/or lower back were not noted. There is no evidence of thoracolumbar spine arthritis manifested to a compensable degree within one year following discharge from service. The Veteran's DD Form 214 indicates that his military occupational specialty (MOS) was air defense auto weapons crewman. His record of assignments shows he was a radio telephone operator and a gunner assigned to an artillery unit. His reports that he drove in a tank are arguably consistent with the circumstances of his service; however, he has not reported a specific back injury related to same. On VA back examination in December 2020, the Veteran indicated he did not know how or the specific date of onset of low back pain. He did not report any specific event or trauma but did state he had low back pain for approximately 20 years. The examiner stated that as of the date of the examination, the Veteran had not been diagnosed with any lumbar spine condition; however, x-rays were ordered which showed degenerative changes, most pronounced at L5-S1. The examiner opined that the claimed condition was less likely than not caused by service. The rationale stated no chronic diagnosis yet indicated degenerative disc disease based on x-rays. Due to the conflicting information, a clarifying opinion was requested and obtained in February 2021. Following review of the claims folder, the examiner stated that during active duty there was no medical evidence to suggest that the Veteran had back pain or was ever diagnosed with any back condition. The Veteran reported the onset of low back pain around 2000 which is 38 years after leaving service. Degenerative arthritis is related to the natural aging process. With that said, the Veteran's diagnosis is less likely as not incurred in, caused by, or etiologically related to service. A nexus has not been established. On review, the Board finds the VA addendum opinion highly probative. It was based on review of the claims folder and was supported by adequate rationale. The record does not contain probative evidence to the contrary. In making this determination, the Board acknowledges the Veteran's contentions, but he has not shown that he has the medical training, experience, or expertise to be competent to diagnose a back disorder or to provide a medical etiology opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board has also considered the Veteran's statement that he was treated for a spine condition in the 1960's at the VAMC, but this is not supported by the overall evidence of record. That is, it tends to show that he did not have any spine problems at separation or for many years thereafter. The Veteran's lay statements are not sufficient to establish in-service onset or nexus in this case. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. Entitlement to service connection for a cervical spine disorder In March 2017, the Veteran claimed service connection for cervical spine compression and indicated that he constantly jumped from a tracked vehicle with steel helmet. In his May 2017 notice of disagreement, he reported that he was a boxer while on active duty and he believes this aggravated his cervical spine. Service treatment records are negative for any complaints or findings related to the neck. On separation examination in September 1962, the Veteran's spine was reported as normal on clinical evaluation. On the associated report of medical history, he indicated he was in very good health and complaints related to the neck were not noted. There is no evidence of cervical spine arthritis manifested to a compensable degree within one year following discharge from service. Notwithstanding, in March 2019, the Board determined that based on the Veteran's account of his physical activities during service, an in-service event, i.e., the physical activities, tasks, and demands of the Veteran's MOS, was established. The question then is whether the Veteran has a current disability related to active service or events therein. The Veteran underwent a VA neck examination in January 2020. He reported that he did not remember ever injuring his neck in the military. He had neck surgery in April 2019. Diagnosis was listed as degenerative arthritis of the spine. Following review of the claims folder, medical literature, and interview and examination of the Veteran, the examiner opined that it was less likely than not that the cervical spine disorder was incurred in or caused by service. In support, the examiner stated that the separation examination showed no evidence of cervical spine complaints and the evidence fails to establish any relationship between the claimed condition and any disease or injury during service. She noted he was a poor historian, but review of records did not indicate a relationship to service. The examiner was also requested to comment on the Veteran's account of jumping from a tracked vehicle and address whether any pathology could be consistent with the types of activity described by the Veteran. She stated that the Veteran's account of jumping during service was not likely to cause a cervical spondylosis and degenerative disc disease over the past 53 years without some type of symptoms. Per the literature it was not always possible to reliably determine the specific cause of neck pain. As a person ages, the bones and cartilage that make up your backbone and neck gradually develop wear and tear. She further stated she was not able to opine as to the cause, but it was common in the literature due to age and risk factors. He had not sought treatment until approximately 50 years after his rigors of military service and he was able to work as a correctional officer for 17 years. He also had a history of exposure to second-hand smoke, used to play football, and was a professional boxer for years along with very active lifting. It was her opinion that the cervical spine disorder was unrelated to service and more to his age and other risk factors. Further, there was no chronicity of complaints or chronic treatment until 50 years following service. Additional VA opinion was obtained in November 2020. The examiner opined that the claimed condition was less likely than not related to service. All records were reviewed. The examiner noted that service treatment records were negative for any injury to the neck or complaints related to the neck and the separation examination was also negative for a neck condition. Post-service records were also negative for a neck injury. The examiner stated that the degenerative disc disease was diagnosed over 50 years after separation and in the absence of injury, the most common cause of disease is the aging process. A nexus to active duty service is not established. On review, the Board finds the VA opinions highly probative. They were based on review of the claims folder and supported by adequate rationale, to include reference to medical literature. The opinions indicate that the Veteran's cervical spine condition was related to the aging process and other risk factors. The Board acknowledges the reference to the Veteran being a professional boxer and notes he reported boxing during service. The Veteran is competent to report this information. Layno v. Brown, 6 Vet. App. 465, 470 (1994). There is, however, no indication that he injured his neck while boxing during service and the record suggests he continued to box post-service with no complaints related to the neck for many years following service. The preponderance of the evidence simply does not support finding that the current cervical spine condition is at least as likely as not related to service, and the record does not contain probative evidence to the contrary. In making this determination, the Board acknowledges the Veteran's contentions, but he has not shown that he has the medical training, experience, or expertise to be competent to diagnose a neck disorder or to provide a medical etiology opinion. See Jandreau. The Board has also considered the Veteran's statement that he was treated for a spine condition in the 1960's at the VAMC, but this is not supported by the overall evidence of record. That is, it tends to show that he did not have any spine problems at separation or for many years thereafter. The Veteran's lay statements are not sufficient to establish in-service onset or nexus in this case. The doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. Entitlement to service connection for left upper extremity disorder In January 2017, the Veteran claimed upper extremity neuropathy relative to his back. He appears to contend he has a left upper extremity disorder related to his cervical spine. Service treatment records are negative for complaints or findings related to the left upper extremity. On separation examination in September 1962, the Veteran's upper extremities were reported as normal on clinical evaluation. On the associated report of medical history, he reported he was in very good health and complaints related to the left upper extremity were not noted. There is no evidence of carpal tunnel syndrome (other organic disease of the nervous system) manifested to a compensable degree within one year following discharge from service. A June 2017 VA record notes degenerative joint disease of the cervical spine with worsening left upper extremity radiculopathy. The Veteran subsequently underwent EMG testing in July 2017 which showed moderate left median demyelinating neuropathy at the wrist or left carpal tunnel syndrome. There was no evidence of a left ulnar neuropathy or generalized peripheral polyneuropathy. There was no electrodiagnostic evidence of an acute or chronic left cervical radiculopathy, plexopathy or myopathy in the myotomes studied at C5, C6, C7, C8 and T1. An April 2020 VA record indicates that the Veteran underwent neck surgery last year for spinal stenosis with associated neuropathy. On VA peripheral nerves examination in January 2020, the Veteran reported tingling in both hands, constant in the left thumb and intermittent in both fingers. He stated the tingling has been going on for years. Following careful review of the claims file, medical literature, and interview and examination of the Veteran, the examiner opined that he did have a diagnosis of left upper extremity neuropathy but it was less likely than not that it was incurred during or caused by service. She noted there was no evidence of left upper extremity complaints during service or at separation and the evidence failed to establish any relationship. She further opined that it was less likely as not due to or aggravated by a cervical spine condition. In support she noted that EMG testing noted no electrodiagnostic evidence of radiculopathy, plexopathy, or myopathy. It was not possible to identify the cause and per the Mayo Clinic, there is no single cause in many cases. It may be a combination of factors that contributes to the development of the condition. The Veteran was a poor historian and cannot remember any one cause that may have caused this syndrome. For the past 51 years until EMG testing in 2017, there were no chronic complaints or treatment to show any evidence that it is related to military service or to his cervical spine. In the August 2020 remand, the Board noted that the examiner did not provide a rationale regarding aggravation. The Board requested an addendum opinion addressing aggravation only. An addendum opinion was obtained in November 2020. The examiner stated that the claimed condition was less likely than not incurred in or caused by service. Per medical records the Veteran has bilateral carpal tunnel syndrome. Service treatment records were negative for any injury or complaints and the separation examination was negative. The bilateral carpal tunnel syndrome was diagnosed over 50 years after separation. Further, the EMG in 2017 revealed no evidence of cervical radiculopathy and therefore, the condition is not related to the cervical spine. The Board acknowledges that the recent opinion did not address aggravation as directed. Notwithstanding, service connection for a cervical spine disorder is denied herein. Thus, there is no basis for secondary service connection and additional opinion is not warranted. On review, the Board finds the VA opinions highly probative. They were based on review of the claims folder and supported by adequate rationale, to include reference to medical literature. The preponderance of the evidence simply does not support finding that the Veteran has a current left upper extremity disorder that is at least as likely as not related to service, and the record does not contain probative evidence to the contrary. In making this determination, the Board acknowledges the Veteran's contentions, but he has not shown that he has the medical training, experience, or expertise to be competent to diagnose carpal tunnel syndrome or other left upper extremity disorder or to provide a medical etiology opinion. See Jandreau. The Veteran's lay statements are not sufficient to establish in-service onset or nexus in this case. The doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. Entitlement to service connection for a bilateral eye disorder In March 2017, the Veteran claimed a loss of visual acuity due to a neck injury compounded by light reflection from water on the Panama Canal. In his notice of disagreement, he again stated that he was frequently blinded by the reflection of sunlight off the water. He also reported that he was a boxer while on active duty and after having his nose broken, he had vision problems. On enlistment examination in January 1961, the Veteran's eyes were reported as normal, but distant vision was 20/30 on the right and 20/25 on the left. Service treatment records are negative for any complaints or findings related to the eyes. On separation examination in September 1962, the Veteran's eyes, ophthalmoscopic, pupils, and ocular mobility examinations were within normal limits on clinical evaluation. Distant vision was 20/40 on the right and 20/20 on the left. On the associated report of medical history, the Veteran denied any eye trouble. The Veteran underwent a VA examination in January 2020. Diagnoses were listed as cataracts and drusen and the examiner indicated that the Veteran's decrease in visual acuity was attributable to the cataracts. The examiner stated that age related cataracts and drusen in both eyes were less likely than not caused by a or a result of injury in service. She noted that drusen were yellow deposits under the retina and were made up of lipids, a fatty protein. In August 2020, the Board remanded the appeal for an opinion addressing whether the Veteran's eye condition was caused or aggravated by his cervical spine disability. Additional opinion was obtained in October 2020. The examiner opined that the claimed conditions (cataracts and drusen) were less likely than not incurred in or caused by service; and less likely than not proximately due to a service-connected condition. The examiner stated that both conditions are considered age related and highly unlikely related to the cervical spine. These are highly likely separate and unrelated events. The Board notes that further information is not needed pertaining to secondary aggravation as service connection for a cervical spine disorder is denied herein. On review, the evidence does not show that the Veteran had cataracts or drusen during service or for many years thereafter. Additionally, the medical opinions of record relate these disorders to age and not to any incident in service. The VA opinions are considered highly probative and the record does not contain probative evidence to the contrary. In making this determination, the Board acknowledges the Veteran's contentions pertaining to excess light exposure and a broken nose. He is competent to report these events, although the Board notes there is no indication of a broken nose or eye issues during service nor is there competent evidence relating his current eye diagnoses to same. The Veteran has not shown that he has the medical training, experience, or expertise to be competent to diagnose cataracts/drusen or to provide a medical etiology opinion. See Jandreau. The Veteran's lay statements are not sufficient to establish in-service onset or nexus in this case. As service connection for a cervical spine disorder is denied herein, there is no basis for secondary service connection. See 38 C.F.R. § 3.310. To the extent this claim includes refractive error, the Board notes that this was shown on the right at both enlistment and separation. The Board further notes that refractive errors are considered congenital defects and not compensable disabilities for VA purposes absent superimposed disease or injury resulting in additional disability which is not shown in this case. See 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-90; 55 Fed. Reg. 45711 (1990). The doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. REASONS FOR REMAND Entitlement to service connection for a left leg disorder As indicated, the Board denied service connection for left leg pain in March 2019 and this decision was subsequently vacated by the Court. The August 2020 Board remand directed that additional examination be requested. Specifically, the examiner was to identify any left leg condition and whether it was related to active service or secondary to the thoracolumbar spine condition. A remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions and imposes upon the Board a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran underwent a VA knee and lower leg examination in December 2020. The examiner stated that examination of the left lower extremity was normal, and he did not believe the Veteran had any lower extremity issue related to this disability questionnaire. The Veteran most likely had lumbar radiculopathy. The examiner remarked that baseline x-rays of both the back and left lower extremity were ordered. On VA back examination in December 2020, physical examination revealed mild radiculopathy on the right, but the left lower extremity was reportedly not affected. The December 2020 examiner opined that the claimed condition was less likely than not incurred in or caused by service. In support, he stated that no chronic diagnosis was made for the left and objective examination was normal with only subjective symptoms. Thus, there was no nexus or plausible secondary relationship established. The examiner further stated that he had been waiting on results of the lower extremity x-rays for several weeks, but the results were never given, or the Veteran was not able to obtain the x-rays at the examination date. An addendum opinion was obtained in February 2021. At that time, the examiner stated that there were no objective findings to support a diagnosis of radiculopathy and that the prior comments regarding left lower extremity radiculopathy should be disregarded as they were in error. While the examiner stated there was no left leg disorder, it is unclear whether x-rays of the left lower extremity were accomplished as requested. A remand is needed to determine this. If the x-rays were conducted, the report should be associated with the file and if not, they should be scheduled. Thereafter, an addendum opinion is needed on direct service connection. Additional opinion is not warranted on secondary service connection because as explained above, service connection for a thoracolumbar spine disorder is denied herein. The matter is REMANDED for the following action: 1. Determine whether x-rays of the left lower extremity were accomplished in connection with the December 2020 VA knee and leg examination. If so, the report must be associated with the claims folder. If the x-rays were not obtained, they should be scheduled. 2. Thereafter, return the claims folder and left lower extremity x-ray report to an appropriate clinician for an addendum opinion. Additional examination is not needed unless requested by the examiner. The examiner is requested to identify all diagnoses pertaining to the left leg. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion. The examiner is requested to state whether it is at least as likely as not that any left leg disorder is related to active duty or events therein. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required) or the examiner (does not have the needed knowledge or training). 3. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.