Citation Nr: 22018376 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-12 983 DATE: March 29, 2022 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to a back disability, is denied. Entitlement to service connection for radiculopathy of the left lower extremity, to include as secondary to a back disability, is denied. REMANDED Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. A chronic back disability did not manifest during active service or within one year of service and is not otherwise related to service. 2. Radiculopathy of the right lower extremity did not manifest during active service or within one year of service and is not otherwise related to service or a service related disability. 3. Radiculopathy of the left lower extremity did not manifest during active service or within one year of service and is not otherwise related to service or a service related disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for entitlement to service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to June 1979 and from November 1979 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in June 2012 and February 2015. The issues on appeal were remanded for additional development in January 2020 and January 2022. In November 2019, the Veteran testified at a video conference hearing before a Veterans Law Judge who is unavailable to participate in this decision. The transcript of that hearing is of record. The Veteran did not respond to a September 2021 notice informing him of his right to another Board hearing and his request for a hearing is considered to have been satisfied. Service Connection for a Back Disability and Radiculopathy of the Lower Extremities Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The term "disability" for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran contends that he has a back disability and radiculopathy of the right and left lower extremities as a result of active service. More specifically, he reports having back pain during and after service. He relates his radiculopathy of the lower extremities to his back disability. Service treatment records show that the Veteran complained of back pain in March 1979. The examiner's assessment was muscle soreness. The reports are negative for complaint, treatment, or diagnosis of radiculopathy. The Veteran's July 1980 separation examination revealed a normal clinical evaluation of the spine and lower extremities. An October 2008 private medical noted an X-ray study revealed minimal degenerative changes in the lumbar spine. Subsequent VA and private medical records note treatment for thoracolumbar spine disorders without opinion as to etiology. When he was examined by VA in May 2012, the Veteran reported having back trouble that began in service after carrying heavy batteries. The examiner noted that current X-ray studies revealed degenerative spurring and disc space narrowing at L5/S1. In remarks at the end of the report, the examiner found it was less likely that the current back condition of arthritis and degenerative disc disease is related to military service. The examiner acknowledged the treatment that the Veteran received in 1979. However, as there were no findings of complaints, treatment, or diagnosis of low back problems until 2008, the examiner indicated that the suggested the current back disability had some other etiology outside of service. The examiner specifically noted that the back complaint in service was an acute condition without further complaints in service. Based upon the evidence of record, the Board finds that a back disability and radiculopathy of the right and left lower extremities were not manifested during active service and that arthritis of the spine was not manifest within one year of the Veteran's active service. The persuasive evidence also fails to establish that a present disability is etiologically related to service. The Board finds that May 2012 VA opinion as to the back disability is persuasive and based upon adequate rationale. The examiner is shown to have reviewed the evidence of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The report of that examination shows that the examiner considered the Veteran's report of in-service injury and pain and the persistence of that pain since service. Nevertheless, based on a complete review of the claims file, physical examination, and consideration of the reported lay history, the examiner determined that the back disability and radiculopathies were not related to the Veteran's active service. There is no competent medical opinion to the contrary. An additional examination as to these matters is not required. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). There is likewise no indication that a radiculopathy disability may be reasonably attributed to any specific event, injury, or disease, other than as secondary to a service related to disability, most specifically a low back disability. Significantly, as the evidence persuasively suggests that the radiculopathies are due to the Veteran's back disability, and because service connection for back disability is not established, service connection on a secondary basis is denied as a matter of law. Consideration has also been given to the Veteran's personal assertions that he has a back disability and radiculopathy of the right and left lower extremities as a result of active service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In conclusion, the Board finds service connection for a back disability and for radiculopathy of the right and left lower extremities is not warranted. The persuasive evidence is against the claims. REASONS FOR REMAND 1. Entitlement to service connection for asthma is remanded. Although this issue was previously remanded, additional development is required prior to appellate review. In its January 2020 remand the Board requested an addendum opinion, in essence, addressing both (a.) whether asthma clearly and unmistakably (obviously and manifestly) existed prior to service and (b.) whether there was clear and unmistakable (obvious and manifest) evidence that the disability did not undergo an increase in severity during service beyond the natural progress of the disease. The record includes a March 2020 medical opinion that adequately addressed part (a.) of the directive but did not address part (b.) under the requested, applicable clear and unmistakable evidence standard. A remand confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, an additional VA medical opinion is required for an adequate determination. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran's asthma. The addendum opinion must address the following: (a.) Did the Veteran's asthma clearly and unmistakably (obviously and manifestly) exist prior to the Veteran's period of service? (b.) If any asthma clearly and unmistakably existed prior to service, is there clear and unmistakable (obvious and manifest) evidence that the disability did not undergo an increase in severity during service beyond the natural progress of the disease? (c.) If the answer to either of the prior questions is negative, is any asthma at least as likely as not related to an in-service injury, event, or disease? MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.