Citation Nr: 21042187 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 08-12 991 DATE: July 12, 2021 ORDER Service connection for lumbar spine degenerative arthritis and intervertebral disc syndrome (lumbar spine disorder), to include on a chronic disease presumptive basis, is denied. FINDINGS OF FACT 1. The Veteran has current diagnoses of lumbar spine degenerative arthritis and intervertebral disc syndrome (lumbar spine disorder). 2. There was no in-service back injury, disease, or event other than an incidental finding of scoliosis. 3. Symptoms of the lumbar spine disorder were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation. 4. The current lumbar spine disorder did not have its onset in, and is not otherwise etiologically related to, active service, including to the incidental finding of scoliosis. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from October 1991 to June 2005. In an August 2007 administrative decision, the Department of Veterans Affairs (VA) determined that the period from May 7, 2003 to June 16, 2005 was under dishonorable conditions for VA purposes. The instant matter is on appeal from an August 2007 VA Regional Office (RO) rating decision that, in pertinent part, denied service connection for back arthritis. The matter has been before the Board of Veterans' Appeals (Board) previously. In February 2021, the Board remanded the matter for a VA addendum opinion concerning the etiology of the back arthritis. As the opinion has been provided, the Board finds that there has been substantial compliance with the terms of the remand and the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Legal Criteria Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 incurrent in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. The Veteran is currently diagnosed with degenerative arthritis in the lumbar spine. Arthritis is a "chronic disease" for purposes of 38 C.F.R. § 3.309(a); accordingly, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a); Walker, 703 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in-service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. § §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection for a lumbar spine disorder The Veteran has current diagnoses of lumbar spine degenerative arthritis and intervertebral disc syndrome. See March 2021 VA Examination. Accordingly, the present disability requirement for service connection is met. The Board notes that the legal provisions regarding service in the Southwest Asia Theater of Operations during the Persian Gulf War under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not applicable. The Veteran has back symptomatology, which the examiner has attributed to the known diagnoses of lumbar spine degenerative arthritis and intervertebral disc syndrome. The diagnosed lumbar spine disorder therefore does not qualify as an undiagnosed illness and the diagnoses are not on the list of qualifying medically unexplained chronic multisymptom illness. 38 C.F.R. § 3.317(a)(1). After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a finding of an in-service back injury, disease, or event, including no chronic symptoms of lumbar spine arthritis during service. Service treatment records during the Veteran's period of honorable service do not show any complaints, symptoms, diagnosis, or treatment for back pain or any other lumbar spine problems. Only a June 2003 service treatment record reflects a complaint of back pain as a flu symptom during the period of dishonorable service, which cannot be used for service connection purposes. See 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a) (stating that a discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits). Instead, the Veteran's spine was repeatedly found to be clinically normal upon examination, and the Veteran consistently denied symptoms of recurrent back pain throughout service. See e.g. March 1991 service treatment record; October 1997 service treatment record; April 1998 service treatment record; April 2001 service treatment record; March 2002 service treatment record; June 2004 service treatment record. Service treatment records only reflect an incidental finding of scoliosis in August 1993, as further discussed below. Given the absence of an in-service injury, disease, or event, other than the incidental finding of scoliosis, the weight of the evidence is against a finding that lumbar spine arthritis symptoms were chronic during service, as would support chronic disease presumptive service connection under 38 C.F.R. § 3.303(b). The lay and medical evidence weighs against a finding of continuous symptoms of arthritis in the lumbar spine since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either "chronic" in-service or "continuous" post service symptoms, or arthritis to 10 percent within one year of service. As discussed above, service treatment records do not indicate any history or findings or diagnosis for arthritis in the lumbar spine, or any other problems with the lumbar spine. The earliest evidence of arthritis in the lumbar spine is not indicated until 2011 in a July 2011 VA treatment record showing an MRI diagnosis of degenerative changes and spondylosis in the thoracic spine, over eight years after separation from honorable service and over seven years outside of the applicable presumptive period. Concerning direct service connection, in addition to the absence of an in-service injury, disease, or event other than the incidental finding of scoliosis, an April 2018 VA opinion provided a negative nexus between the current lumbar spine disorder and service. The April 2018 VA examiner noted that the service treatment records are silent for recurrent or chronic lower back pain except for single transient thoracolumbar pain related to viral flu syndrome, which is during the dishonorable period of service. Additionally, the post-deployment examination in March 2004 (also during the dishonorable period of service) is silent for any back pain. The April 2018 VA examiner noted that there were no records from immediately after service. An August 2011 VA medical opinion provided a negative nexus between the current lumbar spine disorder and service. The August 2011 VA examiner noted that the service treatment records document an incident of thoracolumbar pain that was associated with a viral flu syndrome, which was during the dishonorable period of service. The August 2011 VA examiner noted that there was a normal spine examination at the separation physical. The August 2011 VA examiner concluded that the low back pain in service was acute and transitory and is not related to the present complaint. The August 2011 VA examiner noted that the Veteran stated he had testing for a thoracolumbar disorder in 2011, which is eight years after honorable discharge. Finally, a March 2021 VA opinion found that the current lumbar spine disorder is less likely than not related to the mild thoracic spine scoliosis identified in August 1993 or to the Veteran's use of heavy firefighting equipment carried on his back during his military service. The March 2021 opinion notes that the Veteran denied injury or trauma to his lower spine while serving in the military, finding that his degenerative arthritis is a slow progressing condition more likely due to aging or genetic predisposition. As the evidence of record does not contain any competent medical opinion to the contrary, the Board finds that the weight of the evidence is against service connection for a lumbar spine disorder. As service connection is not warranted on a direct or chronic disease presumptive basis, the claim for service connection for a lumbar spine disorder must be denied. E. CHOI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED