Citation Nr: 1829775	
Decision Date: 08/06/18    Archive Date: 08/17/18

DOCKET NO.  11-24 782	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for a lumbar spine disability.

2.  Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, as secondary to a lumbar spine disability.


REPRESENTATION

Appellant represented by:	Brian D. Hill, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife




ATTORNEY FOR THE BOARD

K. Laffitte, Associate Counsel


INTRODUCTION

The Veteran had active duty service from May 1971 to September 1972 with additional service in the United States Air Force Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

In October 2012, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is included in the claims file.

This matter was previously before the Board in June 2014 and March 2017 in which the Board remanded the matter for further development in both instances.  


FINDINGS OF FACT

1.  The Veteran's lumbar spine disability is not etiologically related to service.

2.  The Veteran's peripheral neuropathy was not incurred in service or aggravated by a service-connected disability. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for a lumbar spine disability have not been met.  38 U.S.C. §§ 1110, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).

2.  The criteria for service connection for peripheral neuropathy have not been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017).  These notice requirements were accomplished in a September 2010 letter sent prior to the adjudication of the Veteran's claims.  

VA has fulfilled its duty to assist the Veteran.  Service treatment records, private treatment records identified by the Veteran, and VA medical treatment records, have been obtained.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  A VA examination was conducted in October 2014.  As the Board deemed the examination inadequate in its March 2017 remand, a subsequent medical opinion was obtained in April 2017.  The examiner made all required clinical findings and provided sufficient information.  38 C.F.R. § 3.159 (c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  Therefore, the VA examination and opinion is fully adequate for adjudication purposes.

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and is not a part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).


Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017).  To establish a right to compensation for a present disability, a Veteran 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, the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)).  The absence of any one element will result in denial of service connection.

Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

Additionally, secondary service connection may be granted where a disability is proximately due to or the result of 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) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 48 (1995).

Certain disorders, listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service.  See Walker v. Shinseki, 708 F.3d 1331   (Fed. Cir. 2013).  Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309 (a).  Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  38 C.F.R. § 3.303 (b).

Whenever 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 Veteran.  38 U.S.C. § 5107(b).

      Lumbar spine

The Veteran seeks service connection for a lumbar spine disability.  The Veteran reported that he hurt his back loading pallets of freight while at Dover Air Force Base in early 1972.  

In August 2008, the Veteran was diagnosed with degenerative disc disease at the L3-L4, L4-L5 levels, with a bulging disc at the L5-S1 level.  As a result, the Veteran had a lumbar fusion in October 2009 with a discharge diagnosis of L5-S1 disc degeneration with bilateral L5 radiculopathies.  The surgery was repeated in October 2012.  

In October 2014, the Veteran received a VA examination for his lumbar spine condition.  The Veteran reported constant low back pain that increases with standing, walking, and prolonged sitting.  Range of motion showed forward flexion limited to 50 degrees and extension limited to 20 degrees.  The examiner noted that the Veteran had pain on movement, with pain radiating into his right leg/foot, and muscle spasms resulting in an abnormal gait or contour.  The examiner diagnosed the Veteran with arthralgia/lumbago with a diagnosis date of November 1973, degenerative disc disease (DDD) and lumbar and disc herniation with a diagnosis date of 2009.  The examiner found that the Veteran's back condition was less likely as not caused by service given that the Veteran was not seen or treated for back pain in service.  As the Board determined this opinion was inadequate based on a lack of supporting rationale, a subsequent medical opinion was obtained.  

In April 2017, the examiner submitted an addendum opinion in which he/she again found that the Veteran's back condition was not related to service, but rather, was related to the Veteran's anal condition.  In so finding, the examiner explained that the Veteran underwent an anosigmoidoscopic exam, anal fissurectomy, and hemorrhoidectomy in July 1973, and that the Veteran continued to experience pain post-surgery.  After being seen for a suspected pilonidal cyst, it was determined that the Veteran did not have a cyst, but the Veteran continued to experience pain.  The examiner continued to explain that on July 28, 1974, the Veteran had a posterior anal fissure and was admitted to the hospital where he had BCE with air contrast, EKG, sigmoidoscopy; and on July 30, 1974, the Veteran had an anal fissurectomy and an associated hemorrhoid was also excised.  The examiner explained that posterior anal fissure can be very painful, and because of the location of the fissure, it is possible to experience deferred lower back pain.  The examiner further explained that this is not true back pain, and the pain resolves after an anal fissurectomy.  

In determining whether service connection is warranted, the Board reiterates that service connection requires an in-service event or injury, a current diagnosis, and a causal relationship between the two.  Here, the Veteran has a current diagnosis of DDD of the lumbar spine.  With regard to an in-service injury, the Veteran's service treatment records are silent for any complaints, treatment, or diagnosis relating to a back condition; however, a Report of Medical History dated June 29, 1973 and November 16, 1973 show that the Veteran noted having "recurrent back pain." 

In determining whether a causal relationship exist, the Board has considered the April 2017 medical opinion and the remaining evidence of record and affords the medical opinion great probative weight as the rationale is consistent with the evidence of record.  The Board notes that the Veteran reported back pain in his Reports of Medical History on June 29, 1973, and November 17, 1973.  The evidence shows that shortly after the Veteran reported back pain in June 1973, the Veteran was examined and diagnosed with an anal fissure resulting in anal fissurectomy on July 6, 1973.  The evidence also shows that after surgery the Veteran continued to report pain, noting such on his November 1973 Report of Medical History, which resulted in a second anal fissurectomy in July 1974.  Notably, in the Veteran's November 1974 Report of Medical History, the Veteran did not report any back pain.

Post-service records show treatment and surgery to the Veteran's T11 thoracic spine resulting in a neurectomy; however, the Veteran testified that this injury was caused by a work-related accident and was unrelated to the Veteran's reported in-service back injury.  The records show DDD of the Veteran's lumbar spine in 2008, and reports of pain thereafter; however, there is no evidence of record that links the Veteran's current back condition to his active duty service.  Additionally, in a September 2011 Statement in Support of Claim, the Veteran reported that he went to the hospital several times for his lower back injury in 1972 while at Dover AFB; however a records search for inpatient clinical records for the Veteran revealed a negative response.  

Further, the Veteran has testified that his current low back disability is a result of an unsubstantiated injury in service.  The Board recognizes that the Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis.  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current low back disability.  See Jandreau, 492 F.3d 1372, 1377 n.4.  Degenerative disc disease requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology.  Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his active duty service.

Additionally, the Board recognizes that the continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for specific chronic diseases, such as arthritis, listed in 38 C.F.R. § 3.309 (a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).  However, there is no evidence that shows the Veteran's back condition manifested to a compensable degree within one year from the date of the Veteran's separation from active military service as required under 38 C.F.R. § 3.309 (a).  As noted above, the Veteran was not diagnosed with DDD until August 2008, years later after the Veteran's discharge.  Therefore, 38 C.F.R. § 3.303 (b) does not apply in this case.  

As explained above, the evidence shows that the Veteran's current back condition was not related to service, and that his in-service reports of back pain were related to his anal condition.  As there is no evidence that the Veteran's lumbar spine disability was diagnosed within one year of discharge, nor is there evidence of a causal relationship to service, a preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the claim is denied.


	Peripheral Neuropathy

The Veteran contends his peripheral neuropathy is a consequence of his lumbar spine disability.  Service connection may be provided for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310  (2017).  The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation.  38 C.F.R. § 3.310 (b). 

However, in this case, because the Veteran's claim for entitlement to service connection for a lumbar spine disability has been denied, it follows that the secondary service connection claim fails as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit).
As to service connection on a direct basis, the Veteran did not allege direct service connection for his peripheral neuropathy, nor does the record raise this theory of entitlement.  Nonetheless, the Veteran's service treatment records are silent for any complaints, treatment, or diagnosis relating to neuropathy.  Post-service records show that the Veteran was diagnosed with peripheral neuropathy in 2007 and has been treated for such; however, there is no evidence linking the Veteran's neuropathy directly to service.  

Therefore, as the evidence does not show that the Veteran's neuropathy was incurred in service, related to service, or caused or aggravated by a service-connected disability, the preponderance of the evidence is against a finding of service connection on a direct and secondary basis.  Accordingly, the claim is denied.


ORDER

Entitlement to service connection for a lumbar spine disability is denied.

Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, as secondary to a lumbar spine disability is denied.

____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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