Citation Nr: 21042211 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-52 292 DATE: July 12, 2021 ORDER Entitlement to service connection for lumbar spondylosis and osteoarthritis of the back (back arthritis), to include on a secondary basis, is denied. REMANDED Entitlement to service connection for immune system malfunction with food allergies, to include as due to psoriasis, is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's back arthritis is related to or had its onset in service; and against a finding that it is caused or aggravated by his service-connected psoriasis. CONCLUSION OF LAW The criteria for service connection for back arthritis, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to December 1972. These matters initially come before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating which, among other things, denied service connection for psoriatic arthritis of the back and immune system malfunction with food allergies. In September 2017, the Veteran filed a notice of disagreement (NOD) and in May 2018 the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). In July 2018, the Veteran filed a substantive appeal (via VA Form 9). In January 2019, the Board remanded the Veteran's claim for further evidentiary development, specifically, to obtain any outstanding treatment records. Also, the Board remanded the Veteran's claim to obtain a medical opinion to determine the etiology of the Veteran's immune system malfunction with food allergies and psoriatic arthritis of the back. As will be discussed below, the Board finds that the AOJ substantially complied with the Board's remand directives with respect to the claim of service connection for back disability. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) As a final preliminary matter, in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) the United States Court of Appeals for Veterans Claims (Court) held that a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. The Veteran originally filed a claim for psoriatic arthritis of the back and the Board has broadened the Veteran's claim and considered all back disabilities raised by the record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). Back arthritis A July 2018 private treatment note indicates that the Veteran is diagnosed with psoriatic arthritis. A March 2019 private physician diagnosed the Veteran with lumbar spondylosis and herniated intervertebral disc of the lumbar spine. Also, the private physician diagnosed the Veteran with disc bulge with superimposed left central extrusion at L2-L3 contributing to mild central canal narrowing, disc bulge with severe bilateral facet osteoarthritis at L5-S1 with mild left foraminal narrowing, and disc bulges at L3-L4 and L4-L5. Thus, current back disability has been demonstrated. The Veteran contends that his back arthritis was caused by his service-connected psoriasis. The Veteran's service treatment records are negative of complaints, treatment, or findings of a back disability. However, the Veteran was diagnosed with chronic psoriasis while in service which spread across his body. The remaining question is whether the Veteran's current back arthritis is related to an in-service injury or disease or whether the Veteran's service-connected psoriasis caused or aggravated his back arthritis. A December 2019 VA examiner opined that the Veteran's back arthritis was less likely than not etiologically related to or had its onset during his active service. The VA examiner also opined that the Veteran's back arthritis did not become manifest to a compensable degree within one year of the Veteran's service. The VA examiner explained that the Veteran's military records were silent for evidence of a diagnosis or treatment for back arthritis. The VA examiner also pointed to recent medical records in which his back arthritis was attributed to a gym injury. The VA examiner conducted a literary search and found that herniated disks are often the result of heavy lifting, a sudden pressure on the back, or repetitive strenuous activities. The December 2019 VA examiner also concluded that the Veteran's back arthritis is not associated with his service-connected psoriasis. The VA examiner explained that the Veteran was not diagnosed with psoriatic arthritis of his back. Also, the VA examiner explained that there is not any medical literature or any supporting evidence that would indicate his psoriasis would have caused or aggravated his back arthritis. The December 2019 VA examiner provided an opinion on a direct and secondary basis and substantially complied with the January 2019 Board remand instructions. The VA examiner provided a thorough rationale and explained the reasons for his conclusion based on an accurate characterization of the evidence of record. The VA examiner's opinion is therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, there is no contrary medical opinion in the evidence of record. The Veteran asserts that his back arthritis is related to his service-connected psoriasis, however, this issue is medically complex, as it requires knowledge of anatomical relationships, pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran does not contend that he was diagnosed with or experienced any symptoms associated with his back while in service or continuously since that time. The Board notes that the Veteran's service treatment records do not contain a report of medical history and his separation examination was negative of any back problems. Therefore, the specific, reasoned opinion of the December 2019 VA examiner is of greater probative weight than the Veteran's more general lay assertions. The Board has also considered whether service connection is warranted on the basis of the presumption of service connection for chronic diseases, but the weight of the above evidence is against a manifestation of back arthritis in service or within the one-year presumptive period following the Veteran's December 1972 separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for back arthritis on a direct, secondary, or presumptive basis. The benefit of the doubt doctrine is therefore not for application and service connection for lumbar spondylosis and osteoarthritis of the back (back arthritis) is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for immune system malfunction with food allergies, to include as due to psoriasis, is remanded. On the Veteran's November 2016 Fully Developed Claim (VA Form 21-526EZ), he stated that his immune system malfunction with food allergies was caused by his use of steroids to treat his service-connected psoriasis. This is a valid theory of entitlement. Velez v. West, 11 Vet. App. 148, 157 (1998) (discussing "an implicit secondary-service-connection claim that his gastrointestinal disorder was the result of, inter alia, pain medication taken for his service-connected right-shoulder condition"). A December 2019 VA examiner opined that the Veteran's immune system malfunction with food allergies is less likely than not etiologically related to the Veteran's military service. The VA examiner pointed to an April 2019 VA treatment note where the Veteran reported he had no known food allergies. The VA examiner did not address a January 2011 private treatment note in which a physician provided the Veteran a nutritional consultation and diagnosed the Veteran with food allergies. The VA examiner also did not address numerous other treatment notes in which he reported food allergies. Also, the VA examiner did not address the Veteran's main contention that his food allergies are related to his use of steroids for his service-connected psoriasis. Therefore, the December 2019 VA examination is inadequate, and another remand is necessary to obtain an appropriate medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). Also, the evidence also indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Wilmington Vista electronic records system (dated to April 2019) and the Philadelphia Vista electronic records system (dated to May 2017). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance); see also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the Wilmington Vista electronic records system for the period since April 2019; the Philadelphia Vista electronic records system for the period since May 2017; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, request an opinion from an appropriate clinician regarding whether the Veteran's immune system malfunction with food allergies and any related symptoms is related to service or is caused or aggravated by service-connected disability. If an examination is required, one should be conducted, to include via telehealth if appropriate. The clinician should indicate whether it is at least as likely as not (a 50 percent or greater probability) that any immune system malfunction with food allergies or any related symptoms experienced by the Veteran since approximately November 2016 (1) had its onset during service; or (2) is otherwise related to service. Also, the clinician must indicate if any immune system malfunction with food allergies or any related symptoms experienced by the Veteran since approximately November 2016 is at least as likely as not (1) caused by service-connected psoriasis (to include any medications taken for this disability); OR (2) aggravated by service-connected psoriasis (to include any medications taken for this disability). The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. (CONTINUED ON NEXT PAGE) The clinician must provide reasons for each opinion given. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.