Citation Nr: 18160522
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 09-03 351
DATE:	December 27, 2018
ORDER
Service connection for a low back disorder, to include as secondary to service-connected right and left knee arthritis, is denied.
Service connection for left leg numbness/radiculopathy, to include as secondary to service-connected right and left knee arthritis, is denied.
FINDINGS OF FACT
1. A low back disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and was not caused or aggravated by service-connected right and left knee arthritis.
2. Left leg numbness/radiculopathy is not shown to be causally or etiologically related to any disease, injury, or incident in service, and was not caused or aggravated by service-connected right and left knee arthritis.
CONCLUSIONS OF LAW
1. The criteria for service connection for a low back disorder have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
2. The criteria for service connection for left leg numbness/radiculopathy have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the U.S. Air Force from May 1969 to May 1989. 
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. That decision, in pertinent part, denied service connection for a lower back condition and left leg numbness. 
In his initial claim, the Veteran asserted that problems affecting his lower back, and resulting in left leg numbness, were secondary to his service-connected knee disabilities. Later, in his VA Form 9, he argued that his low back disability and left-leg numbness were not secondary or related to his service-connected knee arthritis.  Instead, the back disability had its onset in service. The Board has considered both theories of entitlement. 
In October 2012, the Board remanded the case, in part, for a VA examination and medical opinion. There were additional remands in December 2015 and August 2016.
In July 2017, the Board denied the Veteran’s claims.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In September 2018, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision and remanding the matter for readjudication.
Service Connection
Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).
If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including arthritis—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder.  See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology.  However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected.  38 C.F.R. § 3.310(a).  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 or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Background
The Veteran's service treatment records (STRs) reflect that the Veteran had a right low back strain in March 1988 with non-radiating back pain.  On physical examination, there was tenderness to the right lumbosacral area.  The Veteran's STRs are silent for any complaints, treatment or diagnosis of any radiating pain or leg numbness.  The remainder of the Veteran's records are silent for any low back or radiating pain.  Furthermore, there were no additional records or X-ray reports showing either a chronic impairment or that the Veteran had any chronic residuals which may have been associated with an acute episode.  On retirement examination in March 1989, the Veteran denied current back pain and radiating pain or numbness and the spine was reported as normal on clinical evaluation. 
The Veteran's post-service treatment records reflect the Veteran's reports of back pain caused by working in the yard in May 1990.  In addition, the Veteran's records reflect occasional treatment shown through September 1991.  A copy of an insurance form was submitted in support of the Veteran's claims indicating that it was for back surgery.  
In July 2001, the Veteran underwent a neurosurgical evaluation for complaints of left leg weakness and numbness.  He reported a back injury about five years prior.  It took him several weeks to get over this and since he felt his back was not right.  The physician stated that the Veteran had "fairly classic history for progressive disorder of the L4-5 disc with eventual herniation of the L4-5 disc causing L5 radiculopathy."  The Veteran subsequently underwent a L4-5 discectomy. 
In January 2008, the Veteran underwent a VA examination.  However, this examination only addressed the Veteran's knee conditions and did not include information related to his back or left leg numbness. 
An October 2008 statement from Dr. B.C. indicated that the Veteran had been his patient for many years and that "[h]e has ongoing back and left lower leg dysfunction that may be related to his military service."  However, Dr. B.C.'s statement does not reflect that he reviewed the Veteran's STRs and does not provide a rationale for his conclusion.  
In December 2012, the Veteran underwent a VA examination of the spine. In December 2015, the Board found the resulting opinion to be inadequate.  Consequently, and pursuant to the August 2018 JMR, the Board will not consider the findings in that report.
In March 2016, the Veteran underwent an additional VA examination. The examiner noted diagnoses of herniated nucleus pulposus and degenerative joint disease status post laminectomy, spinal stenosis, and left lower extremity radiculopathy. The Veteran reported that he injured his back while on active duty and underwent lumbar spine surgery in 2001. He reported that his back surgery was very successful with no significant impairment due to his back condition. He reported discomfort, but not necessarily pain, but indicated that his left side felt numb after lying or sleeping on it. He further noted that he had been treated for sciatica while in service and shortly after separation from service.
After examining the Veteran and reviewing the claims file, the examiner opined that it was unlikely that the Veteran’s lumbar spine degenerative joint disease, status post laminectomy, L4-5 spondylosis, foraminal stenosis, and herniated nucleus pulposus with residual left lower extremity L4-5 radiculopathy had been incurred in or caused by military service.  The examiner concluded that the Veteran suffered back pain in service that resolved.  The examiner observed, in part, that the Veteran’s service separation examination was silent with respect to chronic or recurrent back pain; that, in fact, the Veteran selected “no” in response to a question asking whether he had current back problems; that he began a lawn service and was engaged in moderate to heavy labor after service, until the time of his back surgery in 2001; that he had no complaint of back pain when seen after service in July 1989; that in August 1990 he reported an episode of sciatica that resolved; that a September 1991 exam reflected that he had a full range of motion in the back, with no paresthesia or radiating symptoms; and that the record thereafter contained a report from 1998 wherein he reported an episode of back pain 2½ years earlier after picking up a toy.  Considering all of the evidence, it was the examiner’s opinion that the back pain in service was likely due to a mild strain to the soft tissue around the spine, resulting in irritation of the sciatic nerve, that resolved.  She stated, “Pathologically speaking, the stenosis, spondylosis, and herniated disc material diagnosed by MRI in 2001 most likely resulted from many years of laborious occupation in lawn care after separation from service.”
The examiner also opined that it was unlikely that the Veteran’s lumbar spine degenerative joint disease, status post laminectomy, L4-5 spondylosis, foraminal stenosis, and herniated nucleus pulposus with residual left lower extremity L4-5 radiculopathy were proximately due to, the result of, or aggravated by the service-connected right and/or left knee disabilities.  The examiner explained that extensive review of the claims file revealed no impairment to such a degree as to cause wear and tear on the lumbar spine, and noted that there was no study in recent medical literature to show a causative relationship between mild degenerative changes in the knees consistent with natural age and herniation, stenosis, or spondylosis of the lumbar spine.
In September 2016, the March 2016 examiner provide an addendum opinion to clarify her position on aggravation. The examiner opined that is was unlikely that the Veteran’s low back disability and left leg numbness were aggravated beyond their natural progression due to right or left knee disability. She provided the rationale that the Veteran reported bilateral knee pain limiting kneeling, lifting, and squatting. The examiner noted that limited physical activity reported due to knee pain would most likely protect the lumbar spine from injury and would not clinically aggravate a lumbar spine condition. Furthermore, the examiner stated that there was no radiographic evidence to show anatomic anomaly in the right or left knee to such a degree as to cause aggravation of the lumbar spine. Furthermore, the examiner noted that the Veteran’s record failed to show impairment to such a degree, both physical and radiographic, to cause unusual wear and tear on the lumbar spine. The examiner reiterated that there was no study in recent medical literature to show a causative relationship between mild degenerative changes consistent with natural age in bilateral knees to cause herniation, stenosis, or spondylosis of the lumbar spine. 
In July 2017, the Veteran’s spouse submitted a statement. She recalled the Veteran coming home from Langley Air Force Base hospital with a low back strain. She admitted that his back complaints are not documented in the service treatment records, noting that since he was a medical technician he may have treated himself with over-the-counter medications. She indicated that his back problems continued since his retirement from service.
Low Back Disorder
The Veteran has contended that he has a low back disorder as a result of his service, or, in the alternative, that his low back condition was caused or aggravated by his service-connected right and left knee arthritis. 
The Veteran has a current diagnosis of lumbar spine degenerative joint disease, status post laminectomy, L4-5 spondylosis, foraminal stenosis, and herniated nucleus pulposus with residual left lower extremity L4-5 radiculopathy; therefore, the first element of service connection, whether for direct, presumptive, or secondary service connection, is met.
As for presumptive service connection and service connection based on continuity of symptomatology, lumbar spine degenerative joint disease, status post laminectomy, L4-5 spondylosis, foraminal stenosis, and herniated nucleus pulposus are not all chronic diseases subject to such forms of service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Furthermore, while arthritis is a chronic disease subject to such forms of service connection, the objective evidence of record does not reflect that such developed to a compensable degree within one year of the Veteran’s discharge from service.  Rather, the Veteran was not diagnosed with degenerative joint disease until 2001 and not definitively diagnosed with degenerative joint disease until 2016, approximately 27 years after his discharge from service.  Furthermore, there is no indication of any continuity of treatment or complaints of arthritis.  Therefore, presumptive service connection or service connection based on continuity of symptomatology is not warranted.
As far as direct service connection, the Board notes that while the Veteran’s STRs reflect that he suffered a minor back injury, such appears to have been treated and resolved with minimal treatment and no residuals. Therefore, the Board notes in the light most favorable to the Veteran, the in-service element of direct service connection is met.
However, as for the nexus element of direct service connection, while the Veteran’s private physician in October 2008 indicated that the Veteran’s current condition “may be related” to his military service, thereby providing a possible positive nexus opinion, he did not provide adequate reasoning or rationale to support his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The opinion was also stated in speculative terms. Therefore, the Board affords this opinion very little probative weight.
The March 2016 VA examiner opined that the Veteran’s low back disability and left leg numbness were less likely as not incurred in or caused by military service. The examiner cited treatment records and offered clear conclusions with supporting data and a reasoned medical explanation connecting the two.  As such, the Board affords her opinion significant weight. See Nieves-Rodriguez and Stefl, supra.
As for secondary service connection, while the Veteran is service-connected for left and right knee arthritis, the VA examiner from March/September 2016 opined that neither knee condition caused or aggravated the Veteran’s back condition nor aggravated it beyond its natural progression. The VA examiner provided well-reasoned medical explanations and rationales to support those opinions as well.  Therefore, the Board also affords them significant probative weight. Notably, there are no contrary medical opinions of record.
The Board has also considered the lay statements of the Veteran and his wife, which indicated that his low back disorder was related to his military service or in the alternative his service-connected right and left knee arthritis. In this regard, a layperson is competent to report on that of which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
However, the question of causation of a low-back disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, such an opinion requires specialized knowledge of the musculoskeletal system. There is no indication that the Veteran or his wife possess such specialized knowledge. While he served as a medical technician, there is no indication that the Veteran had specialized training that would render him competent to render a medical diagnosis. Therefore, the question of etiology in this case may not be competently addressed by lay evidence, and the lay opinions of the Veteran and his wife regarding the etiology of his low-back disorder are non-probative. See Jandreau, supra; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 
Consequently, the Board finds that the Veteran’s low back disorder is not shown to be causally or etiologically related to a disease or injury incurred in or aggravated during active service or caused or aggravated by the Veteran’s service-connected right and left knee arthritis. Therefore, service connection for his claimed disorder is not warranted. 
In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a low back disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.
Left leg Numbness/Radiculopathy 
The Veteran has generally contended that he has left leg numbness/radiculopathy as a result of his service, or, in the alternative, as a result of his service-connected right and left knee arthritis. 
Again, the Board notes that the Veteran has a current diagnosis of lumbar spine degenerative joint disease, status post laminectomy, L4-5 spondylosis, foraminal stenosis, and herniated nucleus pulposus with residual left lower extremity L4-5 radiculopathy; therefore, the first element of service connection, whether for direct, presumptive, or secondary service connection, is met. 
As for presumptive service connection and service connection based on continuity of symptomatology, left leg numbness/radiculopathy or residual left lower extremity L4-5 radiculopathy are not chronic diseases subject to such forms of service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Therefore, presumptive service connection or service connection based on continuity of symptomatology is not warranted.
As for direct service connection, the Veteran’s STRs reflect that he suffered a minor back injury which appears to have been treated and resolved with minimal treatment and no residuals. The Veteran’s STRs are silent for any complaints, treatment or diagnosis of radiculopathy or numbness of the lower extremities.  However, given the evidence related to an in-service injury, the Board concedes the in-service element of direct service connection.
As for the nexus element of direct service connection, as noted, the Veteran’s private physician indicated in October 2008 that the Veteran’s current condition “may be related” to his military service. However, he did not provide adequate reasoning or rationale to support his conclusion. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. In addition, the opinion is stated in speculative terms. Therefore, the Board affords the October 2008 opinion very little probative weight.
The Board notes a June 1990 post-service treatment record addressing treatment for sciatica. The record explains that the Veteran had a flare of sacroiliitis; the Veteran had been working in the yard; and, that the Veteran rested for five days and felt better. 
In March 2016, a VA examiner reviewed the content of the Veteran’s treatment records addressing the symptomatology of the Veteran’s left leg numbness and radicular pain. She concluded that the Veteran’s left leg numbness was less likely as not incurred in or caused by military service. In doing so, the March 2016 examiner provided adequate reasoning and rationale to support her conclusion. Therefore, the Board affords her opinion significant weight. See Nieves-Rodriguez and Stefl, supra. 
As for secondary service connection, while the Veteran is service-connected for left and right knee arthritis, the VA examiner from March/September 2016 provided the opinion that neither knee condition caused the Veteran’s back condition with residual left leg radiculopathy and numbness, nor aggravated it beyond its natural progression. The VA examiner provided well-reasoned medical explanations and rationales to support her opinions. See Nieves-Rodriguez, supra; see Stefl, supra. Therefore, the Board affords them significant probative weight. Furthermore, there are no contrary medical opinions of record. 
The Board has also considered the lay statements of the Veteran and his wife, which, in pertinent part, indicate a belief that his residual left leg radiculopathy and numbness is related to his military service or in the alternative to his service-connected knee conditions. In this regard, a layperson is competent to report on that of which he or she has personal knowledge. See Layno, 6 Vet. App. at 469. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d at 1376-77.
However, the question of causation of residual left leg radiculopathy and numbness involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, such an opinion requires specialized knowledge of themusculoskeletal and neurological systems. There is no indication that the Veteran or his wife possess such specialized knowledge. While he served as a medical technician, there is no indication that he had specialized training that would render him competent to render a medical diagnosis. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the lay opinions of the Veteran and his wife regarding the etiology of his residual left leg radiculopathy and numbness are non-probative evidence. See Jandreau, supra; Woehlaert, 21 Vet. App. at 456. 
Consequently, the Board finds that the Veteran’s residual left leg radiculopathy and numbness is not shown to be causally or etiologically related to a disease or injury incurred in or aggravated during active service or caused or aggravated by his service-connected right and left knee arthritis. Therefore, service connection for such claimed disorder is not warranted. 
In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for residual left leg radiculopathy and numbness. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.
 
DAVID A. BRENNINGMEYER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	F. Lanton, Associate Counsel 

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