Citation Nr: 23056502 Decision Date: 10/17/23 Archive Date: 10/17/23 DOCKET NO. 19-04 778 DATE: October 17, 2023 ORDER Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected right knee disability, is denied. Entitlement to service connection for hypertension, to include as secondary to the service-connected diabetes mellitus disability, is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability was not incurred in service and is not otherwise related to service. 2. The Veteran's lumbar spine disability is not caused or aggravated by his service-connected right knee disability. 3. The probative evidence of record establishes that the Veteran's hypertension clearly and unmistakably preexisted service and was not aggravated during his period of active-duty service. 4. The Veteran's hypertension is not caused or aggravated by his service-connected diabetes disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131,1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1984 to March 1985 and from May 2005 to May 2010. The Board of Veteran' Appeals (Board) thanks the Veteran for his service. This matter comes before the Board on appeal from an August 2016 rating decision of the Department of Veterans Affairs Regional Office (RO), which, inter alia, denied entitlement to service connection for lower back disability, erectile dysfunction, diabetic retinopathy, hypertension, and pseudofolliculitis barbae. This case was previously before the Board in April 2023, at which time the issues of entitlement to service connection for diabetic retinopathy and pseudofolliculitis barbae were denied and the issues of erectile dysfunction along with the issues currently on appeal were remanded for additional development. The RO granted service connection for erectile dysfunction in a June 2023 rating decision and that matter is no longer before the Board in this appeal. The case has now been returned to the Board for further appellate action on the issues of lower back disability and hypertension only. Service Connection Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In order to establish service connection for a claimed disorder, the following must be shown: (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, 1167 (Fed. Cir. 2004). Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include degenerative arthritis, listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). In addition to service connection on a direct basis, service connection may be granted on a secondary basis for a disability that is proximately due to or aggravated beyond its natural progression by a service-connected disease or injury. 38 C.F.R. § 3.310. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no legal requirement of "chronicity of care" or treatment to establish entitlement to disability benefits. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An approximate balance of the evidence includes but is not limited to equipoise. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. See id. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence of record in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Lumbar Spine Disorder The Veteran contends that his back injury was caused by his in-service duties as a wheeled vehicle mechanic required him to stand, bend, lift, carry and conduct "all types of physical labor," thereby causing back pain. In addition, the Veteran contends that he fell off the back of a truck during service, causing his pain now. See VA exam May 2023. He also asserted that his lower back condition is secondary to his service-connected right knee disability. See, e.g., June 2016 VA examination report; February 2019 VA Form 9. Initially, the Board finds that the Veteran has been diagnosed with a lumbar spine disability, to include degeneration of the intervertebral lumbosacral disc, degenerative arthritis of the spine. See March 2015 and June 2016 VA examination reports. Therefore, the first element of service connection is met. Service treatment records (STRs) are silent for any lower back injuries. Upon entrance into service the Veteran's Report of Medical Examination did not note any lower back injuries or events. While the Veteran contends that he fell off a truck, there is nothing in the record to show that he received any care or treatment for that injury. See VA exam May 2023, STRs. The records are also silent for any care received for his back due to his MOS as a wheeled vehicle mechanic while in service. There was also no mention of a lower back injury or event on his post-deployment physical in April 2010. To the extent that a contention is reasonably raised that the Veteran experienced symptoms of a back disability in service after falling from the back of a truck or as a result of his MOS, the Board finds that such a contention is inconsistent with the Veteran's own reports. For instance, in a June 2016 VA examination, the Veteran explicitly denied that falling from the truck required treatment or resulted in any problem and stated that he did not recall any injuries in service other than falling from the truck. While the Board's April 2023 remand found the June 2016 etiology opinion regarding secondary service connection to be inadequate, that does not reduce the probative value of the factual record obtained by the examiner when taking a medical history. In sum, the Board finds any contention that the Veteran's symptoms began in service to not be credible, as it is inconsistent with other statements made by the Veteran and there is no affirmative documentary evidence to suggest he was experiencing symptoms in service. Post-service treatment records show that the Veteran received care for his lumbar spine symptoms from Baptist Medical Clinics in November 2013, more than three years following service separation. See November 2013 treatment note (Veteran reported lower back pain); compare with private treatment records December 2010, September 2012, October 2012, December 2012, and May 2013 (showing no complaints of back pain). For these reasons, the Board finds that the evidence demonstrates that the Veteran did not suffer a chronic lumbar spine disability during service or within one year of separation from service. Accordingly, presumptive service connection is not warranted and service connection for a lumbar spine disorder may not be established based on chronicity in service. 38 C.F.R. §§ 3.307, 3.309. Additionally, the evidence does not demonstrate continuous symptomatology since service. See 38 C.F.R. § 3.303(b). As noted above, the Veteran first sought treatment for low back pain in November 2013. At that time, the Veteran stated that his back pain occurred after lifting a heavy object on November 5, 2013. The Veteran did not report any in-service back injury or continuous symptoms of back pain since service at the November 2013 appointment. The Board would expect the Veteran to have reported ongoing symptoms prior to the November 2013 injury when he sought care, since injury to a pre-existing disability could reasonably be expected to require different assessment and treatment than an acute injury. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of persistent symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed other claims for service connection, but did not mention a low back disorder at any time prior to his claim in July 2014. For example, in May 2010 (only 6 days after service separation), the Veteran filed claims for service connection for diabetes and a bilateral knee disorder but did not mention symptoms of a spine disorder at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting rather than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a lumbar spine disorder, when viewed in the context of his action regarding his other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not incur a spine injury or spine disorder in service. The Board finds that this evidence weighs against a finding of continuous lumbar spine symptoms since service discharge. For these reasons, the Board finds that service connection based on continuation of symptomatology is not warranted. Next, the Board finds that the Veteran's diagnosed lumbar spine disorder is not related to service. The Veteran was afforded a VA examination in April 2015. During the evaluation, the Veteran contended that his pain began in 2008 and radiated down his left leg. Following review of the record, the examiner opined that the Veteran's lumbar spine disorder was less likely than not connected to service. In support of this opinion, the examiner stated that there was "No finding of any cervical problems on active duty or with onset during reserve weekend or summer camp or during military service." The April 2023 Board remand decision found that the May 2015 and June 2016 VA opinions were inadequate. Therefore, in this decision the Board continues to assign them no probative weight. Pursuant to the Board's April 2023 remand, the Veteran was afforded another VA examination in May 2023 after the Veteran provided the above-mentioned records, which considered if the lower back disability was directly connected to service. The examiner opined that the lower back disability was less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by the claimed in-service injury, event, or illness. In supporting this opinion, the examiner stated that "there is no chronicity of care. There was no notation about the spine or a back condition upon entering, during, or for three years after service. Therefore, a nexus to service is not established." In June 2023, the Veteran was afforded another VA examination in which the examiner considered if the Veteran's low back disability was directly connected to service. The examiner opined that the "Veteran has claimed low back disability as being directly related to military service. Based on review of the available evidence, it is less likely than not that the claimed condition is due to service as there is a lack of substantiating evidence supporting a nexus between the current diagnosis of degenerative arthritis of the lumbar spine and military service. Without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology." The Board finds the 2023 VA examiners' opinions highly probative as to whether the Veteran's lumbar spine disorder is directly related to service. The examiners reviewed the evidence of record, to include the Veteran's statements and post-service injury, and provided an opinion supported by a clear rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board further finds that the Veteran's lumbar spine disorder is neither caused nor aggravated by his service-connected knee disability. The May 2023 VA examiner also provided an opinion regarding secondary service connection. In this regard, the examiner stated that "[t]he conditions of left spine arthritis and disc bulge and right knee disability- arthritis are not medically related. The left spine arthritis and disc bulge is a separate entity entirely from the right knee disability- arthritis and unrelated to it. There is no credible evidence to suggest that an injury or disease of one lower extremity (veteran's service connected right knee) would have any significant impact on the spine, unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters so that the individual's gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a significant limp). The veteran's SC right knee condition is not of the severity to result in a back condition." The May 2023 examiner also opined as to whether the Veteran's service-connected knee disability aggravated the lower back disability. In determining that there was no aggravation the examiner stated that there is "no evidence of significantly altered gait, stance or weight bearing status due to the right knee arthritis to cause a lower back disability. In addition there was no evidence of increased treatment, flare ups or exacerbations of the lower back disability beyond natural progression identified." The Board finds the May 2023 VA examiner's opinions highly probative as to whether the Veteran's lumbar spine disorder is secondary to the service-connected knee disability. The examiner reviewed the evidence of record, to include the Veteran's statements and post-service injury, and provided an opinion supported by a clear rationale. See Prejean, 13 Vet. App. 448-9. While the Board acknowledges the Veteran's contention that his lumbar spine disorder is related to service or secondary to his service-connected knee disability, he is not competent to provide an opinion as to the etiology of his lumbar spine disorder as he has not been shown to have the requisite medical knowledge, training, or experience. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Lumbar spine disorders, to include arthritis and intervertebral disc syndrome, are medically complex disease processes because of their multiple possible etiologies, require specialized testing to diagnose, and manifest even observable symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). For these reasons, the evidence weighs substantially against the claim; thus, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Accordingly, the claim for entitlement to service connection for a lumbar spine disorder is denied. Hypertension The Veteran contends that his hypertension was aggravated by his service or alternatively secondary to his service-connected diabetes mellitus. Every veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Where the presumption of soundness has initially attached, the burden is on VA to rebut the presumption by clear and unmistakable evidence that the disease or injury was both preexisting and not aggravated by service. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 23 (2016) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), Horn v. Shinseki, 25 Vet. App. 231, 234 (2012), and Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). VA is not precluded from determining that the presumption of soundness is rebutted, even if there is conflicting evidence. See Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004) ("The clear and unmistakable evidentiary standard... does not require the absence of conflicting evidence."). A determination that a condition had its onset prior to service may be supported by contemporaneous evidence or recorded history in the record which provides a sufficient factual predicate to support a medical opinion (Miller v. West, 11 Vet. App. 345, 348 (1998)), or a later medical opinion based on statements made by a veteran about the preservice history of the condition (Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000)). A preexisting injury or disease is considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the condition. See Wagner, 370 F.3d at 1096 (holding that when no preexisting condition noted on entry to service, government may show lack of aggravation by establishing that any increase was due to the natural progress of the preexisting condition). In addressing the aggravation prong of the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation, rather than the notion that the record contains insufficient evidence of aggravation. See Horn, 25 Vet. App. at 235. The clear and unmistakable evidentiary standard requires that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citations omitted); Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for hypertension. In a November 2005 report of medical history, the Veteran reported a history of hypertension and cited medications that he was currently taking to manage the symptoms. However, the Veteran's November 2005 enlistment exam did not note current hypertension. Initially, the Board notes that the presumption of soundness applies in this case because the Veteran's enlistment examination did not note hypertension. Nevertheless, the Board finds that the Veteran did have hypertension that clearly and unmistakably existed prior to service. In this regard, the service treatment records clearly document the Veteran's own contemporaneous reports that he had hypertension and was on prescribed medication, which requires a medical professional's determination that a current disability exists. Further, the probative medical opinions of record conclude that the Veteran's hypertension clearly and unmistakably existed prior to service based on the evidence of record and the Veteran's own reports. See May and June 2023 C&P Exams. The Board also finds that the Veteran's preexisting hypertension was not clearly and unmistakably aggravated by service. The Veteran's service treatment records document occasional spikes in blood pressure and the Veteran received ongoing care for hypertension while on active duty. See STRs dated January 2006, February 2006, June 2007, August 2007, September 2007, June 2008, February 2009, March 2009, April 2009, September 2009 (showing high blood pressure readings); compare with STRs records August 2005, December 2005, January 2006, March 2006, June 2006, July 2006, October 2006, January 2007, March 2007, September 2007, February 2008, September 2008, December 2008, January 2009, September 2009, November 2008, March 2010 (showing normal blood pressure levels). While there were some breakthrough blood pressure readings demonstrated during the Veteran's service between 2005 and 2010, it is notable that medical records submitted prior to active service (including STRs from the Veteran's inactive periods of service) show similar vacillations in regular blood pressure readings. In a June 2023 VA examination, the examiner found that the hypertension which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner conducted a review of the record and relevant medical literature, then opined that there is no evidence of aggravation beyond the natural progression of the Veteran's pre-existing hypertension. The examiner's rationale was that medical evidence clearly showed that the Veteran's hypertension was managed by medications with poor control both before entering and during active duty. See, e.g., STRs dated January 2005, May 2005. Further, while in service, the Veteran was not noted to have any complications related to hypertension such as cardiovascular disease, chronic kidney disease, myocardial infarction, or stroke. Therefore, the examiner concluded there is no aggravation beyond natural progression due to service. The Board finds the May and June 2023 VA examiner's opinions highly probative as to whether the Veteran's hypertension clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reviewed the evidence of record, to include the Veteran's statements and treatment history and provided an opinion supported by a clear rationale. See Prejean, 13 Vet. App. 448-9. Based on the foregoing, the Board concludes that the presumption of soundness has been rebutted because the probative evidence persuasively weighs in favor of finding that the Veteran's hypertension clearly and unmistakably existed prior to service and was not clearly and unmistakably aggravated by service. Accordingly, service connection is not warranted for hypertension on a direct basis. Next, the Board finds that the Veteran's diagnosed hypertension is caused or aggravated by his already service-connected diabetes mellitus. The Veteran was also afforded a VA examination in May 2023 to consider whether or not the hypertension was caused or aggravated by the Veteran's service-connected diabetes mellitus. The examiner opined that the claimed condition was less likely than not (likelihood is less than approximately balanced or nearly equal) due to his service-connected diabetes mellitus because hypertension and diabetes mellitus are not medically related. In addition, the examiner noted that the diagnosis of hypertension predated the diagnoses of diabetes mellitus and therefore cannot be caused by diabetes mellitus. The May 2023 examiner also was less likely than not aggravated by the Veteran's service-connected diabetes mellitus. The examiner's rationale was that the Veteran's hypertension has been managed with "various agents" since 2005 and that is part of natural disease management and progression. It was also noted that the claims folder does not have any evidence to support a worsening or increased treatment of the hypertension, to include as due to the diabetes mellitus. The Board finds the May 2023 VA examiner's opinions highly probative as to whether the Veteran's hypertension is secondary to the service-connected diabetes mellitus. The examiner reviewed the evidence of record, to include the Veteran's statements and treatment history and provided an opinion supported by a clear rationale. See Prejean, 13 Vet. App. 448-9. While the Board acknowledges the Veteran's contention that his hypertension is related to service or secondary to his service-connected diabetes mellitus, he is not competent to provide an opinion as to the etiology of his hypertension as he has not been shown to have the requisite medical knowledge, training, or experience. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Hypertension is a medically complex disease processes because of its multiple possible etiologies, require specialized testing to diagnose, and manifest even observable symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board notes that the Veteran has submitted no competent evidence showing that his hypertension worsened during service or as a result of his diabetes mellitus. He has been afforded ample opportunity to furnish medical and other evidence in support of his claim. 38 U.S.C. § 5107(a) (noting it is a claimant's responsibility to support a claim for VA benefits). [Continued on next page] ? For these reasons, the evidence weighs substantially against the claim; thus, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Accordingly, the claim for entitlement to service connection for hypertension, to include as secondary to the service-connected diabetes mellitus, is denied. C. Beeler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alkhatib, Chelsea A. 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.