Citation Nr: 22034945 Decision Date: 06/15/22 Archive Date: 06/15/22 DOCKET NO. 20-06 670 DATE: June 15, 2022 ORDER Service connection for a lower back disability, claimed as degenerative arthritis of the spine, is denied. REMANDED Service connection for hypertension is remanded. Service connection for a respiratory disability, claimed as chronic obstructive pulmonary disease (COPD), is remanded. FINDING OF FACT A back disability was not manifested during active service; thoracolumbar spine arthritis was not manifested within a year after the Veteran's separation from his active service; and any current back disability is not shown to be etiologically related to such period of service. CONCLUSION OF LAW Service connection for a back disability is not warranted. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1963 to March 1971, with around 20 years of service after that in the National Guard and/or Reserves. The issues are on appeal before the Board of Veterans' Appeals (Board) from an August 2018 rating decision. The Veteran testified before the Board in a January 2021 hearing. A transcript of the hearing has been reviewed by the Board and has been associated with the claims file. In November 2021, the Veteran was notified that the Veterans Law Judge who had conducted his Board hearing was no longer employed by the Board. The Veteran was given the opportunity to elect to participate in another hearing. The letter noted that he had 30 days from the date of the letter to respond and if no response was received, the Board would assume he did not want another hearing and proceed accordingly. As no response was received, another hearing will not be scheduled. The Board last remanded the issues in January 2022 for additional development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases listed in 38 C.F.R. § 3.309(a) (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time post-service (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection for a lower back disability The Veteran seeks service connection for a lower back disability. He contends his low back disability is due to hurting his back around 1967 while working in a warehouse, and due to his military occupational specialty duties, which included requiring him to refuel aircraft. Turning to the evidence, the Veteran's service treatment records demonstrate a May 1978 complaint of back pain. The Veteran reported that it hurt to bend his back. He was diagnosed with lumbosacral strain. The remaining service treatment records, including periodic and annual evaluations, are silent for back disability symptoms, findings, or complaints. Post-separation, the first notation of a back disability is a March 2009 VA treatment record which states that the Veteran was being treated for degenerative disc disease. In July 2018, the Veteran was afforded a VA examination where he reported that the onset of his lower back pain was in 1990, with a progression of pain. In February 2022, a VA examiner provided an addendum medical opinion where he stated that the Veteran's back disability was less likely than not due to active duty. The Veteran denied a history of recurrent back pain in service treatment evaluations. The examiner acknowledged the May 1978 lumbosacral strain diagnosis, but also noted that the Veteran was told to take an aspirin and that there was no follow-up subsequently to the May 1978 encounter. The February 2022 examiner carefully explained that the Veteran worked as a delivery driver after separation, which was a physical job that could place undue strain on the back over time or acutely if the Veteran strained his back while lifting boxes/items. Therefore, given the Veteran's 1990 onset date, the examiner found that the Veteran's back disability was well likely related to the physical work endured by the Veteran as a delivery driver, and not due to the years working as an aircraft mechanic and in a warehouse during active duty. Finally, the February 2022 examiner noted that the current severity of the back could be greater than the baseline, however, the severity was not due to a service-connected condition. Therefore, there was no aggravation beyond natural progression of the claimed conditions by a service-connected condition. Additionally, there was no known pathophysiological mechanism in which the Veteran's service-connected pseudofolliculitis barbae would aggravate a back condition, and thus the Veteran's back disability was less likely than not caused by or aggravated beyond natural progression by a service-connected disability. Based on the above, the Board finds that the Veteran's low back disability had not manifested during the Veteran's period of active duty. The earliest onset date is 1990, as reported by the Veteran, in the July 2018 VA examination. As the Veteran separated from active duty in March 1971, this is almost 20 years after separation. Accordingly, service connection for the claimed disabilities on the basis that any became manifest in service and persisted, or on a presumptive basis for arthritis, is not warranted. Considering the foregoing, the Board finds the evidence is not in approximate balance and there is no doubt to be resolved. Accordingly, the appeal in this matter must be denied. REASONS FOR REMAND 1. Service connection for hypertension is remanded. In the January 2022 remand, the Board found that an August 2021 addendum medical opinion was inadequate and could not be relied upon for adjudicative purposes as the examiner failed to provide any type of rationale for the proffered opinion. Upon remanding for an additional addendum medical opinion, the examiner was instructed to consider all lay statements submitted by the Veteran, which included statements from his Board testimony where he contended that the stress he experienced while in the military could have been the cause of his hypertension. An addendum medical opinion was obtained in February 2022. The examiner found that the Veteran's hypertension was less likely than not due to active duty as the earliest documentation of hypertension was in July 1978, which was seven years since separation. Earlier annual and periodic evaluations were silent for medical issues regarding hypertension. Additionally, as the Veteran's specific hypertension was essential hypertension, the examiner noted that essential hypertension was often due to obesity, family history, and an unhealthy diet. Finally, the Veteran continued to smoke cigarettes which the examiner explained caused higher blood pressure. Therefore, the examiner also found that the Veteran's hypertension was not aggravated beyond natural progression by the Veteran's periods of active duty during the National Guard and Reserve service. Unfortunately, the February 2022 examiner did not address the Veteran's lay statements, including the statement that the stress he experienced while in the military could have been the cause of hypertension. On remand, the examiner is asked to address the Veteran's contentions of stress induced hypertension in an addendum medical opinion. 2. Service connection for a respiratory disability, claimed as COPD is remanded. In the January 2022 remand, the Board found that an August 2021 addendum medical opinion was inadequate and could not be relied upon for adjudicative purposes as the examiner failed to provide any type of rationale for the proffered opinion. Upon remanding for an additional addendum medical opinion, the examiner was instructed to specifically address the Veteran's in-service exposure to chemicals and fuel during active duty and reserve service periods. Unfortunately, the February 2022 examiner did not address any in-service exposure to chemicals and fuel during active duty or reserve service. On remand, the examiner is asked to specifically address the Veteran's in-service exposure to chemicals and fuel during active duty and reserve service periods, while proffering an etiology opinion. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a qualified medical practitioner, to determine the etiology of the Veteran's hypertension. The examiner is asked whether the Veteran's hypertension is caused by, due to, was incurred in, or is otherwise related to the Veteran's military service, to include due to his lay statements of reporting stress while in service. 2. Obtain a medical opinion from a qualified medical practitioner, to determine the etiology of the Veteran's COPD. The examiner is asked whether the Veteran's COPD is caused by, due to, incurred in, or otherwise related to his military service. The examiner must specifically address the Veteran's in-service duties as an aircraft mechanic and exposure to chemicals and exhaust fumes, and his lay statements relating the onset of breathing problems in service as described at his January 2021 hearing. 3. Readjudicate the appeals. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.