Citation Nr: 24007014 Decision Date: 02/08/24 Archive Date: 02/08/24 DOCKET NO. 17-50 404 DATE: February 8, 2024 ORDER Service connection for diabetic retinopathy is denied. Service connection for degenerative arthritis of the lumbar spine (low back disability) is denied. REMANDED Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a left hip condition is remanded. FINDINGS OF FACT 1. The Veteran's diabetic retinopathy was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's low back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetic retinopathy due to service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had service from June 1976 to May 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified before the undersigned Veterans Law Judge (formerly with the last name Costello). A hearing transcript is associated with the record. In June 2022, the Board remanded the appeal. Partial compliance with the remand occurred. To ensure that VA has met its duty to assist, an additional remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an 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. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Disability which is caused or aggravated by service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310; Allen v. Brown,7 Vet. App. 439 (1995) (en banc). 1. Service connection for diabetic retinopathy The Veteran seeks service connection for diabetic retinopathy which he contends began "right after [he] got out of active duty coming from Europe." See Hearing Transcript at 2 (October 2021). Additionally, the June 2022 Board decision found that the evidence reasonably raised the theory that the Veteran's eye disability resulted from pain caused by a Topamax prescription. See Remand BVA at 3 (June 2022). The Veteran's service treatment records (STRs) reflect distance vision of 20/200 in the right eye on his June 1976 service entrance examination. See STR at 39 (May 2015). The concurrent Optometric Screening Program/WBAMC note documented the Veteran's report that, since the age of three, he had suffered from "distorted lens" due to head trauma and had been "told that lenses would not do any good." Id at 50. He was diagnosed with amblyopic right eye, or lazy eye. Id. In-service and Reserve eye examinations found his eyes, ophthalmic processes, pupils, and ocular motility were otherwise normal with no evidence of any retinopathy. See generally, Id. The Veteran also was seen in February 1992 for complaints of right eye irritation starting that day. He was seen by Optometry, who noted trauma right eye, with redness, itching, and edema. The diagnosis was viral conjunctivitis. In December 1992, he again filled out a Report of Medical History giving a history of eye trouble. After service, an examination by the Social Security Administration (SSA) in March 2006 noted a history of blurry vision for the prior 20 years Private treatment records reflect the Veteran's Topamax, taken for bipolar disorder, was discontinued in May 2002 after he reported pain in the corner of the eye and decreased vision. See Medical Treatment Record - Non-Government Facility at 31 (March 2006). The claimed condition is first documented decades after the Veterans active service. VA treatment records show that diabetic retinopathy was first manifested in 2007. See CAPRI at 61 (April 2008). Neither private nor VA treatment records link retinopathy to service. A May 2006 VA examination diagnosed non-proliferative diabetic retinopathy with macular edema of the right eye due to diabetes mellitus. See VA Examination (May 2006). A September 2022 VA examination diagnosed bilateral moderate nonproliferative diabetic retinopathy with macular edema in the right eye, bilateral status post cataract extraction with intraocular lens, and right eye refractive amblyopia. See C&P Exam (December 2022). The associated medical opinion found that the eye disability did not preexist active service or existed during active service, explaining that there was no retinal hemorrhage, retinal exudates, retinal microaneurysms or muscular edema that needed attention or treatment. The examiner found a baseline level of severity based upon medical evidence available prior to aggravation, noting medical records review consistently show a diagnosis of refractive or childhood amblyopia in the right eye. Examination showed his best corrected vision in the right eye was 20/50 and 20/20 in the left eye. The right eye has never been able to see 20/20 and will never be able to see 20/20 throughout his lifetime. The examiner also found the Veteran's condition was less likely as not aggravated beyond its natural progression. The examiner noted that Topamax can have ocular side effects, but those side effects are not permanent. The examiner explained that this was seen first hand on a patient who became very nearsighted because of Topamax but vision returned to normal after discontinuing the medicine. The Veteran was on Topamax from March to May 2002, but this was discontinued because of eye pain. Also, Topamax had never been known to cause diabetic retinopathy, macular edema, or intraretinal hemorrhages. The Veteran's diabetic retinopathy was not related to or a result of or caused by the Topamax medication and his condition was less likely than not aggravated beyond its natural progression by the Topamax medication. The examiner also cited to an article. The examiner further found the condition was not due to or the result of the Veteran's service-connected condition, noting diabetic retinopathy is retinal damage or retinal pathology, caused by Diabetes Mellitus and the Veteran is not service connected for Diabetes Mellitus. In a February 2023 addendum the examiner also found it was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Supporting rationale reflects that the early stages of retinopathy do not have symptoms, and diabetic retinopathy results when active diabetes is not properly managed or through medication noncompliance. The examiner explained that retinopathy is diagnosed by observing the retina using an Ophthalmoscope that would reveal signs of hemorrhage, exudates, microaneurysm, and cotton wool spots. The earliest the Veteran was diagnosed with diabetic retinopathy was in 2007, 28 years after separation from service and it was mild with no mascular edema in each eye. His diabetic retinopathy did not arise during active service. Additionally, though Topamax can have ocular side effects, it "has never been known to cause diabetic retinopathy, macular edema, or intraretinal hemorrhages" and ocular side effects are not permanent. See C&P Exam (December 2022, February 2023). The Board recognizes that while the Veteran's diabetic retinopathy may be related to his diabetes mellitus, diabetes is not a service-connected disability. To the extent that he suggests his retinopathy is linked to in-service injury or disease, the Board finds that he is not competent to offer such an opinion. The etiology of his disorder is not susceptible to lay observation; but rather, the etiology is complex and requires medical knowledge and training involving disease processes of the eye and nervous system, and their causes. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the question of etiology may not be competently addressed by lay evidence. Davidson v. Shinseki, 581 F.3d 1313 (2009). Therefore, his medical opinion has no probative value. The Board assigns greater probative value to the Veteran's STRs, which show no eye disability apart from refractive error. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Also, the Board assigns greater probative value to the decades intervening service and the first documented findings or complaints for retinopathy. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Competent, credible evidence has not been presented showing that the Veteran's retinopathy began in service, soon after service, or is otherwise related to in-service injury or disease or is caused by Topamax. Moreover, the medical evidence clearly reflects that retinopathy is caused by diabetes mellitus, which is not a service-connected disability. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Service connection for degenerative arthritis of the lumbar spine The Veteran testified that back pain began in 1977 or 1978 as a result of carrying backpacks that weighed over 100 pounds, weapons, and missiles in service. See Hearing Transcript at 11 (October 2021). He reported that he initially saw a doctor in "2000-something" for back pain. Id at 15. The Board concludes that low back disability did not have onset in service, manifest to a compensable degree within the applicable presumptive period, is not otherwise etiologically related to an in-service injury or disease, and not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. November 1978 STRs reflect the Veteran complained of intermittent low back and stomach pain over the course of a month. See STR at 32 (May 2015). Pain in the back was described as throbbing, and paraspinal muscle spasms were noted on examination. The Veteran was assessed with muscular low back pain. A June 1983 Report of Medical History (ROMH) documented the Veteran's report of intermittent low back pain. Id at 33. Prior and subsequent active duty and Reserve medical records reflect no complaints, treatment, or abnormal pathology of the back and/or spine. An April 2007 VA treatment note reflects the Veteran was diagnosed with neuropathy in both legs, feet, back with constant pain, numbness, tingling. See CAPRI at 101 (April 2008). Though subsequent treatment notes continued to document back pain, it was not until June 2010 that an MRI diagnosed "very minimal osteoarthritis of facet on the left side at L5-S1." See CAPRI at 602 (May 2013). At a July 2015 VA examination, the Veteran was diagnosed with degenerative arthritis of the spine. See C&P Exam (July 2015). He denied trauma preceding low back pain that had lasted for "a number of years." The associated medical opinion found that the Veteran's mild lumbar spondylosis was multifactorial but did not result from frostbite. A September 2022 x-ray diagnosed osteoarthritis changes to the posterior facet joints bilaterally at L4-5 and L5-S1. See C&P Exam (December 2022). Related VA medical opinions find that low back disability is less likely than not incurred in active service or caused by service-connected disability. In support, the opinion reflects that (1) degenerative arthritis develops through aging, wear and tear; (2) arthritis was not shown as chronic in service and was diagnosed many years after separation in service; (3) records do not reflect that neuropathic pain of the lower extremities caused low back arthritis; and (4) STRs do not note that low back pain was caused by service-connected disabilities. Id. Having carefully reviewed the lay and medical evidence the Board finds that the most persuasive evidence weighs against the claim. The evidence establishes the presence of a current disability, degenerative arthritis of the lumbar spine. However, the evidence persuasively shows that the Veteran's low back disability is not shown in service; did not manifest within one year after service or that any symptoms are not noted in service with continuity of symptomatology since service; and that the condition is not etiologically related to any in-service injury, event, or disease. Further, the competent, credible evidence of record shows that the Veteran's low back disability is more likely due to aging. The Board accepts that the Veteran is competent to report his symptoms, their onset, progression and treatment history. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Board finds that, to the extent that the Veteran reports in-service back injury and symptoms' onset in service and since service, his statements are not credible in view of a holistic review of the evidentiary record. For instance, (1) STRs reflect no complaints or treatment for back injury and show that the Veteran reported no chronic issues with back pain during his service and (2) the Veteran's history of onset on VA examination and during medical treatment. In other words, the Veteran's retrospective report of injury and continuity of symptoms is inconsistent with other evidence and statements of record. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration a claimant's statements, it may consider whether self-interest may be a factor in making such statements); see also Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996) (holding that, in weighing credibility of lay evidence VA may consider such elements as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, desire for monetary gain, and demeanor of the witness). For all the above reasons, and not simply because the reports are unaccompanied by contemporaneous medical evidence, the Board finds that the Veteran's reports lack credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board assigns greater probative value to the Veteran's STRs and history as provided on VA examinations and when initially seeking treatment at VA. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). This evidence shows no in-service injury to the low back. This evidence shows that the Veteran reported intermittent low back pain during his active duty and post service in the Reserve. This evidence shows that the Veteran gave no history of any injury during service when first seeking treatment at VA for his low back post service. Also, the Board assigns greater probative value to the many years intervening the Veteran's service and the first documented findings or complaints. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In this regard, it is significant that the medical records documenting the Veteran's history of onset and progression show that he did not report any history of back injury during his active service; or that symptoms had presented in association with any in-service duties; but rather reported no history of injury. Lastly, the Board assigns greater probative value to the medical evidence as a whole. The medical evidence clearly reflects that low back disability was neither incurred in nor attributable to in service injury. Rather, the weight of the evidence suggests the Veteran's low back disability is due to the natural process of aging. The Veteran has offered no competent medical opinions in support of his claims. The Board accepts that the Veteran may believe his claimed condition is somehow related to his active service. However, the competent, credible evidence of record shows no indication that low back disability began in service, manifested within one year after service, or is otherwise related to in-service injury or disease. On balance, the weight of the most persuasive evidence is against the claim for service connection for low back disability. Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the development has been completed to the extent feasible. 1. Entitlement to service connection for a right hip condition is remanded. 2. Entitlement to service connection for a left hip condition is remanded. The Veteran contends that his bilateral hip condition is secondary to his service-connected leg and/or foot disability. See Statement in Support of Claim (January 2014). He testified that hip pain began during service due to traveling for two weeks with clothing, foot, ammunition, weapons, tent, and gear on his back. See Hearing Transcript at 18 (October 2021). He reported that, when doctors found that something was wrong with his back in 2003, he "just tie[d] it all together." Id at 19. The Board finds the March 2023 VA medical opinions are inadequate. The March 2023 VA medical opinions found that bilateral hip disability is less likely than not proximately due to or the result of or aggravated beyond its natural progression by the Veteran's service-connected frostbite. See C&P Exam (March 2023). The opinions stated that: Rationale is he had frost bite in his feet during his service, which occurred in 1978. The pain in his legs are due to frost bite and also diabetes. He has had diabetes since 1985. His peripheral neuropathy is below the knee to the feet in a stocking pattern, which is usually typical of diabetes. The earliest records seen regarding any hip condition is in 2017 and x-ray during that time showed mild osteoarthritis of the right hip and was referred to OT for Right hip tendonitis in 2018. The hip pain didn't occur almost 4 plus decades later with no history during his service, and it can't be progression of the frost bite neuropathy as its limited to the feet and is not likely to effect [sic] the hips proximally. Since the most recent bilateral hip x-ray dated 9/16/2022 show normal bilateral hips and pelvis on Hip DBQ 9/16/2022. This is likely tendonitis or could also be greater trochanteric bursitis depending on where the pain is located not a progression of frostbite. Id. The Board finds the medical opinion is inadequate to decide the appeal because it does not provide clear separate findings and rationales relating to causation and aggravation to support the conclusion reached. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, remand is required. Further, a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's hip disability is at least as likely as not (1) proximately due to service-connected leg and/or foot disability, or (2) aggravated (even intermittently) by service-connected leg and/or foot disability. If aggravation is found, a baseline level of severity prior to the aggravation should be identified. The medical opinion should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions, to include that his symptoms of hip disability began as early as 1977; and (iii) the medical evidence of record. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). 2. If an etiology other than leg and/or foot disability is the more likely cause of the Veteran's hip disability, indicate fully the bases for this conclusion and whether it is the only cause. Explain. (Continued on the next page) ? NOTE: Because causation and aggravation are independent concepts, an adequate medical opinion must have separate findings and rationales. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). 3. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. R. Bisignani Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards, 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.