Citation Nr: 22010233 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 18-12 696 DATE: February 22, 2022 ORDER Entitlement to service connection for a low back condition is denied. Entitlement to service connection for a right leg condition is denied. Entitlement to service connection for sciatica is denied. FINDINGS OF FACT 1. The Veteran's low back condition did not have its onset in service, or within one year of his discharge from active service, and is not otherwise related to a period of active service. 2. The Veteran's right leg condition was not incurred in service, and he does not have a service-connected low back condition upon which secondary service connection for a right leg condition can be granted. 3. The Veteran's sciatica was not incurred in service, and he does not have a service-connected low back condition upon which secondary service connection for sciatica of the lower extremities can be granted. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a right leg condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for sciatica have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1952 to March 1955, and from November 1955 to September 1956. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a February 2019 decision, the Board denied the claims on appeal. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 Joint Motion for Partial Remand (JMPR), the Veteran and the Secretary of Veterans Affairs requested to vacate the Board's denial of service connection for the claims on appeal and to remand the issues for readjudication. In February 2020, the Court granted the JMPR and remanded the matters for action consistent with the JMPR's terms. In October 2020, the issues were remanded by the Board for further development and have now been returned for consideration. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. With regard to the duty to assist, the Board notes that the Veteran's service records have been determined to be unavailable. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board concludes, however, that the heightened duty to assist has been met. Exhaustive attempts have been made to obtain the Veteran's complete service treatment records. An April 2009 response from the National Personnel Records Center (NPRC) revealed that the Veteran's medical and dental records were fire related. VA issued a Memorandum in October 2013 determining that the service treatment records were not available for review. All records identified by the Veteran as relating to the claims on appeal have been obtained, to the extent possible. Moreover, all evidence of record has been considered by the Board in the evaluation of these claims, to include lay statements from the Veteran and his co-workers, as well as medical records. The Veteran seeks service connection for a low back condition, right leg condition, and sciatica. Specifically, the Veteran contends that his low back condition, right leg condition, and sciatica are all interrelated and developed as a result of an in-service incident in which he picked up a base plate to reposition it and it fell landing on him and causing him to twist his back. He does not assert that he sustained a distinct injury to his right leg in service, but rather that his right leg sciatica and muscle atrophy are related to his back disability. Because there is similar medical history and evidence related to these claims, as well as similar disposition of the issues, the Board will address them jointly. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § § 3.303 (b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As arthritis is listed as a "chronic disease" under 38 C.F.R. § § 3.309 (a), the provisions of 38 C.F.R. § § 3.303 (b) pertaining to continuity of symptomatology and of 38 C.F.R. §§ 3.307 pertaining to presumptive service connection for chronic disease apply to the Veteran's arthritis claim. Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, a current diagnosis of a low back condition, right leg condition, and sciatica is confirmed by the evidence of record. More specifically, the Veteran was afforded a VA examination in October 2017, at which time he was diagnosed with degenerative arthritis of the spine with lumbar radiculopathy. The Veteran's medical records also document a diagnosis of low back pain with sciatica and right leg atrophy. See March 2015 and October 2015 VA treatment records. With regard to the Veteran's low back condition, the evidence of record includes October 2017, December 2017, and June 2021 VA examination reports and opinions. The October 2017 VA examiner opined that the Veteran's claimed back condition was less likely than not incurred in or caused by the claimed injury that occurred in 1952. However, the October 2017 examiner also stated that the Veteran's military occupational specialty included heavy work which likely could have caused a back injury in 1952. The RO requested an addendum opinion clarifying the October 2017 opinion and a December 2017 addendum opinion was associated with the Veteran's claims file. After reviewing the relevant evidence of record, the December 2017 VA examiner opined that the Veteran's diagnosed degenerative arthritis of the lumbar spine was less likely than not related to or caused by the 1952 in-service injury, as there were several other risk factors that were more likely to be the cause of the Veteran's current back disability. Those included occupations after military service which put significant strain on his body, including construction work and truck driving for several years. In addition, a primary care note dated on September 24, 2009, showed that the Veteran's body mass index was 28.9, which is overweight. Medical literature demonstrates that human vertebrae consist of dozens of bones, joints, discs, and cartilage. The backbone is designated to be flexible in order to maintain maximum range of motion, but in order to keep that flexibility, the backbone must be moved, stretched, and exercised. Not maintaining flexibility results in compression of the joints, which can then lead to chronic back pain. Spinal compression is most often felt in the lower back. In essence, the examiner concluded that because the Veteran was overweight, his backbone was not moved, stretched, or exercised such that it maintained flexibility, resulting in his current chronic back pain. In the January 2020 JMPR, the Court held that the Board tethered the concept that the Veteran's body mass index (BMI) indicates that he is overweight with the finding that the Veteran's backbone was not moved, stretched, or exercised, resulting in pain. The Court noted that the examiner mentioned these concepts, however, did not link or explain the application of the concepts to the Veteran's BMI and lack of movement in the back. Therefore, the Court found that the Board erred in making its own medical conclusions in violation of Colvin. See Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991). Accordingly, the Board remanded the claims on appeal to obtain a competent VA addendum opinion on the matter. In a June 2021 VA opinion, the examiner determined that the Veteran's low back condition, diagnosed as degenerative arthritis and degenerative disc disease and sciatica affecting the right lower leg, is less likely than not incurred in and/or caused during active service, or within one year of the Veteran's separation from active service or is otherwise related to service. The examiner noted the Veteran's reports of an in-service back injury. The examiner noted that the Veteran's medical records in service were destroyed in a fire but that there is no medical evidence of back pain within a year of discharge or shortly after discharge from service. Considering the Veteran did not have any evidence of chronic back pain until 2006, the Veteran's initial back injury during basic training in 1952 was most likely acute and transitory and resolved without residuals. He did not present for back pain treatment until around 50 years later, in 2006. The Veteran was later diagnosed with degenerative joint disease of the lumbar spine with symptoms consistent with sciatica. According to Mayo Clinic, risk factors for these degenerative diseases include older age, diabetes, repeated stress on the joints, and a history of joint injuries to the back. The Veteran's occupational history after military service included construction work and truck driving, both of which are physically strenuous occupations that are considered to be physically stressful on the back. Strain on the lumbar spinal discs due to prolonged sitting are also known risk factors of degenerative disc disease, and the Veteran reported working as a truck driver for over 40 years. The examiner also reviewed the October 2017 VA report referencing the Veteran's BMI to be overweight in 2009 and also referencing the physical stress placed on his back from his job as a truck driver. The examiner noted that the October 2020 remand was reviewed and considered along with all other applicable medical records. Considering the evidence, the examiner found that it is less likely than not that the Veteran's low back condition was incurred in and/or caused during active service and more likely than not attributed to his other risk factors, such as older age, obesity, diabetes, and years of physically strenuous jobs working as a construction worker and truck driver. In a separate June 2021 opinion, the VA examiner determined that the Veteran's right leg sciatica is directly related to his lower back condition. However, as his back condition is not considered related to service, his sciatica is less likely than not caused or aggravated by the Veteran's low back condition from service. The examiner also noted that the Veteran's right leg condition, diagnosed as sciatica affecting the right lower extremity, is directly related to his lower back condition. The Board finds the June 2021 VA opinions to be the most probative medical evidence of record on the matter. These opinions were based on a review of the claims file and relevant facts and are supported by detailed rationales. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the Board finds that there are no competent medical opinions to the contrary. (As noted above, while the October 2017 VA examiner indicated that the Veteran's MOS included heavy work which likely could have caused a back injury in 1952, the examiner went to find that a current disability is less likely related to the claimed 1952 injury, and then ultimately provided a new opinion in December 2017.) To the extent that the Veteran has stated that he has a low back condition, right leg condition, and sciatica attributable to service, the Board finds that he is competent to report on his symptoms and that of which he has personal knowledge, but he is not competent to provide an opinion as to the etiology of his disabilities because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno, 6 Vet. App. at 469-70; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran is not competent to relate his low back condition, right leg condition, and sciatica to his service, or to any incident therein. Additionally, in support of his claims, the Veteran has submitted statements dated in July 2016 from his co-workers attesting to his back pain. One co-worker indicated that he had known the Veteran for 19 years and recalled that he had back problems from being wounded in Korea. Another co-worker indicated that he had known the Veteran for 26 years and that he had known about his back injury incurred in service. The Board finds that these co-workers are competent to report their observations and information that the Veteran has relayed to them, but there is no evidence they have medical expertise or knowledge to render an opinion regarding the etiology of the Veteran's current disabilities. See Layno, supra; Jandreau. Moreover, as the Veteran separated from service in September 1956, neither of these co-workers knew the Veteran for over 3 decades after his separation from service. Therefore, neither of them is able to provide a first-hand account of witnessing any disabilities or injuries until many years following his service. Without any competent evidence that the Veteran's low back condition is related to service, direct service connection is not warranted. Additionally, there is no indication that the disabilities on appeal manifested within one year of service, so service connection based on the chronic disease presumption is also not warranted. Moreover, as the claim of entitlement to service connection for the underlying low back disability is denied, any claims of entitlement to service connection for sciatica of the lower extremities and a right leg disability related to, or as secondary to, the low back disability are also denied as a matter of law. With regard to the issue of continuity of symptomatology for arthritis under 38 C.F.R. § 3.303 (b), the Board has considered all evidence that could speak to a continuity of symptomatology. Specifically, the Veteran asserted in his March 2016 notice of disagreement (NOD) that he injured his back during basic training and that the injury continues to cause symptoms. An October 2011 VA treatment note indicated years of posttraumatic lumbar sacral injuries; an October 2012 VA treatment record indicated right leg pain and chronic back pain; an October 2013 VA treatment note detailed the Veteran's claimed in-service injury and progressive pain since; and a July 2014 VA treatment record noted the Veteran's report of his right leg falling asleep related to his low back injury. While this evidence may speak to continuity of symptomatology for a period of some years, the evidence does not demonstrate evidence of a continuity of symptomatology dating back to the Veteran's service in the 1950s. All of these complaints were made over 50 years since the Veteran's service. Therefore, as the Veteran was not diagnosed with a back disability until many years after service and there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of back complaints, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board would like to emphasize that the denial of these claims is not based on a lack of in-service evidence, as the Veteran's service treatment records are not available for review. Instead, the Board has based this decision on consideration of all evidence of record, to include the absence of related complaints for decades after service and the June 2021 VA medical opinion. In conclusion, the Board finds that the Veteran's low back and right leg conditions, including sciatica, did not have their onset in service, or within one year of his discharge from active service, and are not otherwise related to a period of active service; therefore, service connection is not warranted on a direct basis. Further, the Veteran does not have a service-connected low back condition; therefore, the related claims for service connection for a right leg condition and service connection for sciatica are also not warranted. There is no doubt to be resolved in this case. 38 U.S.C. § 5107. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.