Citation Nr: 21040637 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-58 674A DATE: July 6, 2021 ORDER Service connection for a lumbar spine disability is denied. Service connection for a left hip disability, as secondary to a lumbar spine disability, is denied. Service connection for a right hip disability, as secondary to a lumbar spine disability, is denied. Service connection for a left leg disability, as secondary to a lumbar spine disability, is denied. Service connection for a right leg disability, as secondary to a lumbar spine disability, is denied. FINDINGS OF FACT 1. A lumbar spine disability is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of separation from active duty. 2. A left hip disability is not caused or aggravated by a service-connected disability. 3. A right hip disability is not caused or aggravated by a service-connected disability. 4. A left leg disability is not caused or aggravated by a service-connected disability. 5. A right leg disability is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1131, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.09. 2. The criteria for service connection for a left hip disability have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a right hip disability have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a left leg disability have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a right leg disability have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1989 to July 1991. These claims come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July 2013 and February 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. These claims were previously before the Board in January 2019 and June 2020, at which times they were remanded to the RO for further development, to include providing the Veteran with examinations. In addition, in each remand, the Board instructed the RO to contact the Veteran to give him the opportunity to identify or submit the private treatment records from 1992 which were identified in a private medical opinion submitted in support of his claim. In August 2019, July 2020 and August 2020, the Veteran was provided with authorization forms to allow VA to obtain this important information; such forms were not returned and the Veteran has not otherwise submitted copies of the 1992 records. The Board notes that although VA has a duty to assist in the development of a claim, a claimant cannot stand idle and decline to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991); see also Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence); Hurd v. West, 13 Vet. App. 449, 452 (2000) (a veteran cannot passively wait for help from VA). Therefore, the Board finds that there has been substantial compliance with its remand instructions, and further appellate review is appropriate. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); see also Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). 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, 53 (1990). Back The Veteran seeks service connection for a lumbar spine disability, which has been diagnosed as degenerative disc disease. He asserts that an in-service back injury did not heal and that he has continued to experience back pain since discharge. The Veteran's service treatment records show that, in September 1989, he was seen for complaints of back pain, with a follow-up appointment later that month. The diagnosis at that time was lumbar strain. On a June 1991 report of examination, undertaken for purposes of separation, his spine was evaluated and found to be normal. In a concurrent report of medical history, he denied experiencing any arthritis, joint deformity, lameness, orimportantlyrecurrent back pain. In April 2013, the Veteran underwent a VA examination in relation to his claim. As explained in its previous remands, the Board found this examination to be inadequate for purposes of the Veteran's claim, as the examiner failed to address the Veteran's contentions regarding the continuity of symptoms since service. In a July 2015 private medical opinion, a Dr. J.D. opined that it was at least as likely as not that the Veteran's back symptoms were a result of his military service. In support of this conclusion, the examiner noted the in-service injury and indicated that the Veteran had back symptoms at the time of his discharge. Dr. J.D. also indicated that the Veteran sought back treatment less than a year after discharge, and that the pain had been continuous since 1992. Thus, he opined that there was a "direct causality" from military service. In September 2015 statements, the Veteran's mother and brother described the back pain symptomology they observed. They described the Veteran's marked inability to sit for long periods, difficulty doing chores, and an inability to perform hobbies like golfing, like he used to. In October 2019, the Veteran again underwent a VA examination. At that time, a diagnosis of degenerative arthritis of the spine was confirmed, with a 2012 onset date. It was noted that the Veteran had in-service back pain following a march, which was treated and resolved. The examiner concluded that it was less likely than not that the Veteran's arthritis was due to service. He explained that the mechanism of injury described in the 1989 service incident was inconsistent with the extensive spinal structural changes noted on recent imaging. Rather, the examiner indicated that the Veteran's post-service employment history, with its significant physical stressors, was a likely precipitator of his back pathology. In its June 2020 remand, the Board found that the October 2019 examiner had not fully answered its questions, and requested an addendum opinion from the October 2019 examiner. In an October 2020 addendum report, the same examiner reiterated his initial conclusion that it was less likely than not that the Veteran's arthritis was due to service. In doing so, he acknowledged the Veteran's reports of back pain since service. However, he found that the Veteran's in-service back pain symptoms after a ruck march was consistent with an acute, transient and self-limiting strain injury. Rather, the Veteran's back symptoms, to include the reported pain, were more likely than not secondary to the variety of occupational activities and occupational injuries experienced after his discharge from service. He referenced the section of the October 2019 VA examination report in which the Veteran reported a history of heavy lifting while working delivering bread and lifting heavy caskets as a funeral director. In considering the above opinions, the Board finds the October 2020 VA opinion highly probative on the question of nexus. In this regard, in concluding that the Veteran's back symptoms are a result of post-service factors such as employment, the examiner considered all the pertinent evidence of record, to include the Veteran's statements, his treatment records showing a post-service back injury, and relevant medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In contrast, the July 2015 opinion from Dr. J.D. was conclusory, and was apparently based at least in part on the erroneous belief that the Veteran experienced lower back pain at the time of his discharge. As noted above, the Veteran's back was evaluated as normal, and he denied experiencing any back symptoms at separation. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value). Consequently, the Board finds the VA examiner's opinion more probative because it was more complete, included a more thorough rationale, and showed consideration of all relevant evidence. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (upholding finding that VA examination reports were more probative because they were more thorough and detailed, they discussed the conflicting opinions, and examiners had access to the claims file). Further, the Board does not find the Veteran to be credible in his assertion of recurrent back symptoms from an in-service onset to the present, because he has not been consistent in his reporting. See Caluza, supra. He reported no back symptoms at separation, and only began to assert a history of such symptomology in connection with his claim for service connection. In weighing credibility, VA may consider bias, inconsistent statements, self-interest, and desire for monetary gain. Id. In reaching its decision, the Board has considered the Veteran's belief that his lumbar spine disability is related to his military service, as well as the statements of his family members. As laypersons, they are certainly competent to report matters within their personal knowledge, such as the occurrence of an injury or event, or experienced and observed symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the question of causation of arthritis involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinionand to the extent they were submitted to show etiology, the opinions of his mother and brotheras to the cause of the Veteran's arthritis are not competent evidence and, consequently, are afforded no probative weight. The Board has also considered whether service connection for arthritis on a presumptive basis is warranted. However, the evidence does not show that such manifested within one year of the Veteran's military service. The Board again reiterates that the records which purported to show such manifestations in 1992, the year after discharge, and which were used by Dr. J.D. in formulating his opinion, were not provided to the Board, despite multiple requests by the RO. Rather, the record as it exists shows that arthritis was first diagnosed in 2012, over 20 years following separation from service. Furthermore, while the Veteran and his family reported that the Veteran has experienced back pain since his military service, they are not competent to relate such symptoms to his currently diagnosed arthritis, as such determination also requires medical expertise. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Therefore, the Board finds that presumptive service connection for arthritis, to include on the basis of continuity of symptomatology, is not warranted. Based on the foregoing, the Board finds that a lumbar spine disability is not shown to be causally or etiologically related to any disease, injury, or incident during service and arthritis did not manifest to a compensable degree within one year of service discharge. Consequently, service connection for such a disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim of service connection for a lumbar spine disability and that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. Bilateral hips and bilateral legs At the outset, the Board notes that the Veteran does not contend, and the record does not suggest, that his claimed bilateral hip and bilateral leg disabilities are directly or presumptively related to his military service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, the Veteran has consistently claimed that these conditions are a manifestation of, or are otherwise caused or aggravated by, the lumbar spine disability for which he seeks service connection. As noted supra, VA regulations provide that a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service-connected. However, as determined above, service connection for a lumbar spine disability is not warranted and has not been granted. As such, the Board finds that, under the law, the Veteran lacks legal grounds to establish entitlement to service connection for bilateral hip and leg disabilities as secondary to a service-connected lumbar spine disability. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Insofar as service connection is not in effect for the disability claimed by the Veteran to have proximally caused his bilateral hip and leg disabilities, service connection on a secondary basis is not applicable under the law. As there is no legal entitlement to such benefit, the claims of entitlement to service connection for bilateral leg and hip disabilities as secondary to a lumbar spine disability are without legal merit. Id. Therefore, the claims are denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.