Citation Nr: 22015448 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 10-40 491 DATE: March 17, 2022 ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a right leg disorder, claimed as secondary to low back disability, is denied. Entitlement to service connection for a left leg disorder, claimed as secondary to low back disability, is denied. Entitlement to service connection for a left arm disorder is denied. REMANDED Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a left foot disorder is remanded. FINDINGS OF FACT 1. The Veteran's low back disorder is not etiologically related to an in-service injury or disease, and arthritis of the lumbar spine did not manifest to a compensable degree within the applicable presumptive period. 2. The Veteran's right leg disorder is not etiologically related to an in-service injury or disease, and was not caused or aggravated by a service-connected disability. 3. The Veteran's left leg disorder is not etiologically related to an in-service injury or disease, and was not caused or aggravated by a service-connected disability. 4. The Veteran's left arm disorder is not etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for a right leg disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 3. The criteria for service connection for a left leg disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 4. The criteria for service connection for a left arm disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1966 to January 1968. The appeal to the Board of Veterans' Appeals (Board) arose from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2012, the Veteran and his wife testified during a Board videoconference hearing before a Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In November 2021, the Veteran was advised that the VLJ who held the hearing was not available and he was offered the opportunity for another hearing. He did not indicate that he wanted another hearing. In December 2014, June 2017, and July 2020, the Veteran's claims were remanded for additional development. Service Connection Low Back and Right and Left Leg The Veteran maintains that his low back disorder is related to service. Specifically, the Veteran testified before the Board that his various back and joint complaints had their onset in service. The Veteran reported that he had numerous jumps from aircraft in service that injured his back. The Veteran also, in a February 2009 statement, reported that he sought treatment for his lower back due to his training in the military and due to his duties loading 106 mm guns and loading and offloading trucks. He also reported that he fell from an armored personnel carrier and injured his back. He claimed the leg disorders are either due to service or are secondary to a low back disorder. A review of the Veteran's service treatment reports (STRs) does not reveal any complaints, findings, or treatment for back or leg complaints. The Veteran's entrance and separation examinations revealed normal clinical evaluations of the spine and lower extremities. The Veteran denied recurrent back pain on a report of medical history form prepared in conjunction with the separation examination and he endorsed cramps in his legs. VA outpatient treatment reports reveal complaints of low back pain in October 2004. He reported leg and low back pain in July 2007 and low back and radicular pain on the left side in October 2007. X-rays of the lumbar spine were reported to have revealed mild facet joint osteoarthritis in 2004. The Veteran was afforded a VA back examination in January 2018, the report of which notes a diagnosis of intervertebral disc syndrome (IVDS). The report notes radicular pain and other signs or symptoms due to radiculopathy, to include severe pain and paresthesias and/or dysesthesias in both lower extremities. The Veteran's radiculopathy was noted to include both the sciatic and femoral nerves and was indicated to be of moderate severity. Regarding the likelihood that the diagnosed disability was incurred in or otherwise related to service, the VA examiner opined that it was less likely than not that the Veteran's intervertebral disc syndrome was incurred in service or otherwise caused by any in-service injury or event. As rationale for that opinion, the examiner noted that the Veteran's service treatment records were silent for any back condition or diagnosis during service period and that the Veteran's separation examination report was silent for any residuals or sequelae of a back injury. The examiner further stated that the medical evidence of record is silent for concurrent treatments or diagnosis related to service-connected condition to establish a pattern of disability. A VA opinion was obtained in June 2021 at which time the examiner opined it was less likely than not that the Veteran's low back disability was incurred in service or otherwise caused by any in-service injury or event. As rationale for that opinion, the examiner noted that there was no diagnosis of, or treatment for a back condition during service and the Veteran denied recurrent back pain on a report of medical history form prepared in conjunction with this separation examination. Further, the earliest record of treatment was in March 2017, many years after service. An addendum opinion was obtained in August 2021, the examiner indicated that the Veteran's lay assertions were reviewed; however, since there were no complaints, diagnoses, or prescriptions during service or shortly after service, it was less likely due to service. The examiner reported that the evidence does not support a finding that numerous jumps from aircraft and/or repeated picking up and loading of 106 mm shells as part of the Veteran's service duties as a gunner caused or contributed to any current disability. The examiner noted that there was no diagnosis of or treatment for a back condition during service, and the Veteran denied recurrent back pain on a report of medical history form prepared in conjunction with his separation examination. Further, the earliest record of treatment was in March 2017, many years after service. The examiner included a detailed recitation of the Veteran's medical history. The Board finds that service connection is not warranted for a back disorder. Although the Veteran has a current diagnosis of lumbar facet joint osteoarthritis, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Review of the claims file reveals that the Veteran was not diagnosed with arthritis of the lumbar spine until 2004, thirty-six years after his separation from service. Given the above, the Board concludes that the Veteran does not have a low back disorder related to his active service. The VA opinions, when taken together, are probative evidence because they are accompanied by well-reasoned rationale as well as supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Although the 2021 examiner indicated that the Veteran did not seek treatment for his back until 2017 (treatment was in fact sought as early as 2004), the fact remains that the Veteran did not seek any treatment for more than thirty-six years after service separation. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection in this case. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, there are no contrary medical opinions on file. To the extent that the Veteran believes his low back disorder is due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In short, the Board gives more probative weight to the VA medical opinions of record. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to a low back disorder is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Turing to the claim for right and left leg disabilities, the Board finds that service connection is not warranted. The Veteran has not presented competent evidence to support a causal link to service and as such, service connection is not warranted on a direct basis. To the extent the Veteran claimed these disabilities are secondary to a low back disorder because service connection for a low back disorder is herein denied, service connection on a secondary basis is also not supported. 38 C.F.R. § 3.310. To the extent that the Veteran believes his bilateral leg disorder is due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to a right and left leg disorder is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Service Connection Left Arm The Veteran maintains that his left arm disability is related to service. The Veteran testified before the Board that that his various joint complaints had their onset in service. The Veteran reported that he had numerous jumps from aircraft in service that injured his left arm. He also indicated that his left arm was injured during repeated picking up and loading 106 mm shells as part of his service as a gunner in service. His left arm held the balance of the weight of the shell as it was loaded. The Veteran's spouse also testified that the Veteran would drop things as the arm would lose feeling. The Veteran also, in a February 2009 statement, reported that he fell from an armored personnel carrier and injured his arm. A review of the Veteran's STRs does not reveal any complaints, findings, or treatment for the left arm. The Veteran's entrance and separation examinations revealed normal clinical evaluations of the upper extremities. The Veteran denied painful or trick shoulder on a report of medical history form prepared in conjunction with the examination. VA outpatient treatment reports reveals a negative X-ray of the left shoulder in June 2003. In March 2008 and September 2012, he reported left shoulder pain. The Veteran was afforded a VA examination in June 2018, the report of which notes early degenerative changes involving both the acromioclavicular and glenohumeral joints, as well as pain that restricts the Veteran's range of motion. Regarding the etiology of the Veteran's left shoulder disability, the examiner opined that it is was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. As rationale for that opinion, the examiner relied on the absence of any in-service diagnosis of, or treatment for, a left shoulder or arm condition and also noted that the medical evidence was silent for concurrent treatments or diagnosis related to service-connected condition to establish a pattern of disability. A VA opinion was obtained in June 2021 and the examiner opined that it is was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. As rationale for that opinion, the examiner indicated that there is no STR found in indexed set for a diagnosis of or treatment for a left arm condition during service and the Veteran denied shoulder pain on a report of medical history form prepared in conjunction with the separation examination. The examiner noted that the earliest record found in indexed set with mention of a left arm complaint is in June 2012 at the hearing. The examiner indicated that there was no mention of a history of a fall in 1988 as reported at the 2018 VA examination and no treatment record found in the indexed set specifically documenting a left arm condition. A VA addendum opinion was obtained in August 2021. The Veteran's lay assertions were reviewed; however, since there are no complaints of, diagnoses, or prescriptions during service nor shortly after service, it is less likely due to service. The evidence does not support a finding that numerous jumps from aircraft and/or repeated picking up and loading 106 mm shells as part of the Veteran's service duties as a gunner caused or contributed to any current left arm disability. As rationale, the examiner indicated that there is no STR found in indexed set for a diagnosis of or treatment for a left arm condition during service and the separation Veteran denied shoulder pain on a report of medical history form prepared in conjunction with the separation examination. The examiner noted that the earliest record found in indexed set with mention of a left arm complaint is in June 2012 at the hearing. The examiner indicated that there was no mention of a history of a fall in 1988 as reported at the 2018 VA examination and no treatment record found in the indexed set specifically documenting a left arm condition. Although the Veteran has a current diagnosis of degenerative changes involving both the acromioclavicular and glenohumeral joints, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Review of the claims file reveals that the Veteran was not diagnosed with arthritis of the acromioclavicular and glenohumeral joints until 2018, fifty years after his separation from service. Given the above, the Board concludes that the Veteran does not have a left arm disorder related to his active service. The VA opinions, when taken together, are probative evidence because they are accompanied by well-reasoned rationale as well as supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Although the 2021 examiner indicated that the Veteran did not seek treatment for his shoulder until 2012 (treatment was in fact sought as early as 2003 when X-rays of the left shoulder were negative), the fact remains that the Veteran did not seek any treatment for more than thirty-five years after service separation. In light of the medical records now showing a left shoulder or arm disability until many years following the Veteran's separation from service, the passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection in this case. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, there are no contrary medical opinions on file. To the extent that the Veteran believes his left arm disorder is due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In short, the Board gives more probative weight to the VA medical opinions of record. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to a left arm disorder is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). REASONS FOR REMAND A review of the claims file reveals that a remand is unfortunately once again necessary with regard to the claims for service connection for service connection for right and left foot disorders. The Veteran's claims were previously remanded to obtain a new VA medical opinion. Specifically, the VA examiner was asked to diagnose all right and left foot disabilities and provide an opinion with regard to direct service connection. Subsequently, VA opinions were proffered in June 2021 and August 2021. The examiner opined it was less likely than not that the Veteran's right and left foot condition were incurred in service or otherwise caused by any in-service injury or event. As rationale for that opinion, the examiner noted that there is no STR for diagnosis or treatment for a right or left foot condition during service and the Veteran denied foot trouble on his report of medical history prepared at service separation. The earliest mention of a foot complaint was in September 2011, and it was attributed to medication for his cholesterol per VA treatment reports indicating that it was not a chronic foot condition. The examiner indicated that there was no record of treatment between 2011 and 2018. In the addendum opinion the examiner considered the Veteran's lay statements and came to the same conclusion and included the same rationale. However, the Board notes that the Veteran has in fact complained of right and left foot pain on various occasions during the period from 2011 and 2018. As such, the examiner's rationale was flawed in that the conclusion was based on an inaccurate factual premise. Of note, the Board previously found that the Veteran's foot pain was noted to cause functional impairment and qualified for a disability for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the examiner failed to provide an etiology opinion for the right and left foot disorders. As such, another etiology opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a clinician regarding the nature and etiology of the Veteran's right and left foot disorders. The examiner should render an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that right and left foot disorders had their onset during the Veteran's active duty or are otherwise related to such service, to include numerous jumps from aircraft and/or repeated picking up and loading 106 mm shells as part of the Veteran's service duties as a gunner. All rendered opinions should include a thorough rationale. If the examiner determines that another examination is necessary in order to provide the requested opinions, the Veteran should be scheduled for an examination. 2. Confirm that the VA medical opinions provided comport with this remand and undertake any other development determined to be warranted. 3. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.