INTERVERTEBRAL DISC SYNDROME

MATTHEW W. BLACKWELDER · 2024 · Case ID: 24012497

MIXED

Summary

The Veteran, an Army Veteran who served from September 1979 to September 1982, appeals the denial of service connection for multiple conditions, including back, neck, bilateral upper and lower extremity radiculopathy, knees, ankles, and hypertension. The Veteran also sought secondary service connection for radiculopathy to his back and neck conditions. The Board denied all claims for direct service connection. For the back condition, the Veteran cited in-service falls and a car accident. Service treatment records showed treatment for a muscle sprain but no residual injury, and the separation physical was normal. A February 2018 VA examination diagnosed osteoarthritis at L4-L5, with the examiner opining it was less likely than not related to service, attributing it to advancing age and obesity rather than service. For the radiculopathy claims, the Board found the evidence persuasive that it was less likely than not related to service or a service-connected condition. Similarly, for the knee and ankle claims, the Board found the evidence less likely than not related to service. For hypertension, the Board found the evidence less likely than not related to service. The Board remanded the claim for an acquired psychiatric disorder, including anxiety, depression, bipolar disorder, and PTSD, due to insufficient development. The Veteran had cited a car accident and witnessing sexual violence as stressors, and service records showed a request for psychology analysis with symptoms of restlessness and difficulty sleeping. VA treatment records noted depression and anxiety, while correctional records diagnosed antisocial personality disorder. A VA psychiatric examination was deemed necessary.

Rationale

Service treatment records showed treatment for muscle sprain, but no permanent residual or chronic disability.; Separation physical showed normal spine condition.; VA examiner opined less likely than not related to service, citing age and obesity.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

20-28 183

Full Decision Text

Citation Nr: 24012497
Decision Date: 03/22/24 Archive Date: 03/22/24

DOCKET NO. 20-28 183
DATE: March 22, 2024

ORDER

Service connection for a back disability is denied.

Service connection for a neck disability is denied.

Service connection for left lower extremity radiculopathy, to include as secondary to a back disability, is denied.

Service connection for right lower extremity radiculopathy, to include as secondary to a back disability, is denied.

Service connection for left upper extremity radiculopathy, to include as secondary to a neck disability, is denied.

Service connection for right upper extremity radiculopathy, to include as secondary to a neck disability, is denied.

Service connection for a right knee disability is denied.

Service connection for a left knee disability is denied.

Service connection for a right ankle disability is denied.

Service connection for a left ankle disability is denied.

Service connection for hypertension is denied.

REMANDED

The claim for service connection for an acquired psychiatric disorder, to include anxiety, depression, bipolar disorder, and/or PTSD, is remanded.

FINDINGS OF FACT

1. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's back disability was the result of his active service.

2. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran has a current neck disability as a result of his active service.

3. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran has a diagnosis of bilateral lower extremity radiculopathy which was the result of his active service, or a result of a service connected condition.

4. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran has a diagnosis of bilateral upper extremity radiculopathy as a result of either his active service or a service connected condition.

5. The evidence of record persuasively favors the conclusion that it is less likely than not that a knee disability was the result of his active service.

6. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran has a current ankle disability as the result of his active service.

7. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's hypertension was the result of his active service.

CONCLUSIONS OF LAW

1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

2. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

3. The criteria for service connection for left lower extremity radiculopathy, to include as secondary to a back disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

4. The criteria for service connection for right lower extremity radiculopathy, to include as secondary to a back disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

5. The criteria for service connection for left upper extremity radiculopathy, to include as secondary to a neck disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

6. The criteria for service connection for right upper extremity radiculopathy, to include as secondary to a neck disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

7. The criteria for service connection for a right knee disability have not been met
38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

7. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

8. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

9. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

10. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

11. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the U.S. Army from September 1979 to September 1982. In his substantive appeal to the Board (Form 9) dated June 2020, he requested a Board hearing. However, in November 2022, he withdrew his hearing request due to his incarceration lasting until at least March 2031.

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The nexus requirement, in pertinent part, can be established through objective medical evidence; the application of statutory presumptions for chronic diseases like sensorineural hearing loss, when manifested to a compensable degree within a year of separation from service; or based on a continuity of symptomatology. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In addition, service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, a service connected disability. 38 C.F.R. § 3.310 (a).

1. Back

The Veteran contends that he has a back condition which was related to several incidents in service, such as falls, car accident, parachuting training, etc. See his lay statement dated November 2022 and his report to the VA examiner in February 2018.

Service treatment records (STRs) show that he was treated for left paravertebral muscle sprain following an accident in December 1981. STRs also show that he did experience falls, but these falls did not cause any back injury. The separation physical in June 1982 showed a normal spine condition.

A VA examination in February 2018 diagnosed the Veteran with osteoarthritis L4-L5. The examiner opined that it is less likely than not that the Veteran's
has a back condition which was related to several incidents in service, such as falls, car accident, parachuting training, etc. See his lay statement dated November 2022 and his report to the VA examiner in February 2018.

A VA examination in February 2018 diagnosed the Veteran with osteoarthritis L4-L5. The examiner opined that it is less likely than not that the Veteran's back condition was the result of his service. The examiner provided that following rationale:

Although there is record of treatment inservice for left paravertebral muscle sprain, an acute muscular condition that resolved without residual, there is no permanent residual or chronic disability subject to service connection shown by the service medical records or demonstrated by evidence following service. The Veteran's symptoms of thoracolumbar back pain do not constitute a medical diagnosis, however, radiographical evidence obtained on 2/21/2018 shows the Veteran has osteoarthritis of the L4-L5spine. This is more likely than not (50 percent or greater probability) related to his advancing age, obesity, and sedentary lifestyle. There is no credible nexus supported in evidence that his low back symptoms are incurred in or caused by his military service.

Other medical records do not show that the Veteran had sought treatment for back pain shortly after service. Records from Michigan Department of Correction Health Service show that the Veteran had a normal lumbar spine and thoracic spine during a physical examination in January 2010. He was 5'8 and weighed 262 lbs. at that time.

The Board acknowledges that the Veteran is considered competent to report his back pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he lacks the medical training and expertise to determine the etiology of his back disability. To address this medically complex question the Veteran lacked the medical expertise to answer, VA obtained a medical opinion in February 2018 which is against his claim. This opinion was well-supported, considered the Veteran's statements, and has not been contradicted or undermined by any competent evidence. As such, it is afforded great weight.

Service connection for a back disability is denied.

2. Neck

The Veteran contends that he has a neck condition which was related to several incidents in service, such as falls, car accident, parachuting training, etc. See his lay statement dated November 2022 and his report to the VA examiner in February 2018.

STRs show that he experienced a fainting spell without loss of consciousness in 1979. The assessment at that time was transient neck sprain. He was hospitalized and healed without sequela. The separation physical in June 1982 showed a normal spine condition.

A VA examination in February 2018 did not diagnose the Veteran with a neck disability. X-rays at that that showed normal cervical spine. The examiner indicated that the Veteran's reported neck pain did not constitute a medical diagnosis, and there is no evidence showing this condition have functional impact on his ability to work. The examiner opined that it is less likely than not that the Veteran's neck condition was the result of his service. The examiner stated the following:

There is record by history only, of neck sprain, an acute condition that resolved without residual as evidenced by documentation in 1981, and the Veteran's ability to function without limitations for the remainder of his military service. There is no permanent residual or chronic disability subject to service connection shown by the service medical records or demonstrated by evidence following service. The Veteran's symptom of neck pain does not constitute a medical diagnosis; there is no diagnosed neck or cervical condition, nor is there radiographical evidence [2/21/2018] of any neck or cervical condition. There is no credible nexus supported in evidence that his neck symptoms [not a diagnosed condition] are related to, proximately due to, or the result of the Veteran's military service.

Other medical records do not show that the Veteran had sought treatment for neck pain shortly after service. Records from Michigan Department of Correction Health Service show that the Veteran had a normal cervical spine during a physical examination in January 2010.

The Board acknowledges the Veteran is considered competent to report his neck pain. However, he lacks the medical training and expertise to determine the etiology of his neck pain or whether his neck pain constitutes a cervical spine diagnosis. To address these medically complex questions the Veteran lacked the medical expertise to answer, VA obtained a medical opinion in February 2018 which
credible nexus supported in evidence that his neck symptoms [not a diagnosed condition] are related to, proximately due to, or the result of the Veteran's military service.

The Board acknowledges the Veteran is considered competent to report his neck pain. However, he lacks the medical training and expertise to determine the etiology of his neck pain or whether his neck pain constitutes a cervical spine diagnosis. To address these medically complex questions the Veteran lacked the medical expertise to answer, VA obtained a medical opinion in February 2018 which is against his claim. This opinion was well-supported, considered the Veteran's statements, and has not been contradicted or undermined by any competent evidence. As such, it is afforded great weight.

Service connection for a neck disability is denied.

3. Radiculopathy in lower right extremity

4. Radiculopathy in lower left extremity

5. Radiculopathy in upper right extremity

6. Radiculopathy in upper left extremity

The Veteran contends that he has radiculopathy in his lower extremities secondary to his back condition, and has radiculopathy in his upper extremities secondary to his neck condition.

STRS do not show any complaints of symptoms that would be considered indicative of radiculopathy. The separation physical in June 1982 show a normal spine condition as well as normal extremities.

VA examinations of the back and neck in February 2018 did not find any radiculopathy relating to lumbar spine or cervical spine. The examiner stated that "There is no evidence within the record to support the Veteran has been diagnosed with bilateral lower extremity radiculopathy, either by past history, diagnostics, or by physical examination" and "[t]here is no objective clinical evidence at the time of the exam to substantiate a diagnosis of bilateral upper extremity radiculopathy, nor is there a medically diagnosed neck condition."

In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Even if radiculopathy is diagnosed in the future, service connection is still not warranted on a secondary basis, as the Veteran's a back and neck conditions are not service connected.

Service connection for radiculopathy in lower extremities and upper extremities is denied.

7. Left knee

8. Right knee

The Veteran contends that he has bilateral knee condition which was related to several incidents in service, such as falls, running, parachuting training, etc. See his lay statement dated November 2022 and his report to the VA examiner in June 2018.

STRs show that he was seen for knee pain after running in July 1981. Physical examination of the knees was negative at that time. The separation physical in June 1982 showed lower extremities.

A VA examination in June 2018 diagnosed the Veteran with arthritis in both knees. X-rays at that time revealed minimal joint space loss. The examiner opined that it is less likely than not that the Veteran's bilateral condition was the result of his service. The examiner provided that following rationale:

Veteran was seen one time in July 1981 for knee pain which he attributed to running. Physical in October 1981 was silent for a knee condition and exam was normal. Discharge physical of 6/15/82 is silent for a knee condition. Veteran marked no to trick or locked knee, arthritis, rheumatism or bursitis, bone, joint or other deformity, lameness. The exam was normal. The implies the acute condition in July1981 resolved. There is no medical evidence of treatment for a knee condition one year afterdischarge. After service he was able to work. Veteran has minimal arthritis in both knees. This would not be unusual in a person the Veteran's age and is part of the aging process. Veteran's BMI places him in the obese category which will put stress on the joints of the lower extremities and can lead to degenerative changes.

Other medical records do not show that the Veteran had sought treatment for knee pain shortly after service. Records from Michigan Department of Correction Health Service show that the Veteran's knees were normal during a physical examination in January 2010. His height was 5'8 and he weighed 262 lbs.

The Board acknowledges the Veteran is considered competent to report his bilateral knee pain. However, he lacks the medical training and expertise to determine the etiology of his bilateral knee disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To address this medically complex question the Veteran lacked the medical expertise to answer, VA obtained a medical opinion in June 2018 which is against his claim. This opinion was well-supported, considered the Veteran's statements, and has not been contradicted or undermined by any competent evidence. As such, it is afforded great weight.

Service connection for a bilateral knee condition is denied.

9. Left Ankle

10. Right Ankle

The Veteran contends that he twisted his ankles during service. See his report to the VA examiner in June 2018.

A VA examination in June 2018 did not diagnose the Veteran with any ankle disability. X-rays at that that showed normal bilateral ankle condition. The examiner indicated that the Veteran's reported ankle pain did not constitute a medical diagnosis, since there is no evidence showing this condition have functional impact on his ability to work. The examiner opined that it is less likely than not that the Veteran's ankle condition was the result of his service. The examiner stated the following:

Veteran was not seen for nor treated for an ankle condition in service. Physical in 1981 was silent for an ankle condition and exam was normal. Discharge physical of 6/15/82 is silent for an ankle condition. Veteran marked no to trick or locked knee, arthritis, rheumatism or bursitis, bone, joint or other deformity, lameness. The exam was normal. There is no medical evidence of treatment for an ankle condition one year after discharge. After service he was able to work. Veteran has orthopedically normal ankles.

Other medical records do not show that the Veteran had sought treatment for ankle pain shortly after service. Records from Michigan Department of Correction Health Service show that the Veteran's ankles were normal during a physical examination in January 2010.

In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Service connection for a bilateral ankle condition is denied.

11. Hypertension

The Veteran stated in his written statements in April 2021 and November 2022, that while he currently has high blood pressure, he should have been evaluated for low blood pressure, and he believes that his in-service fainting spells were due to low blood pressure.

STRs noted a self-reported high blood pressure for three days in October 1981. However, the rest of the records consistently show normal blood pressure (BP) readings or sometimes below normal level. For example, the BP readings were 110/40 in July 1981, 120/82 in June 1982; 106/78 and 120/70 in August 1982.

Records from Michigan Department of Correction Health Service show that the Veteran has been diagnosed with hypertension and has been treated with medication. Records show that the onset of his hypertension was January 2010, which is approximately 28 years after service.

Accordingly, the evidence does not show that the Veteran's hypertension began during service or within one year after service. Service connection for hypertension is denied.

As to the Veteran's contention that he should be evaluated for low blood pressure, while this condition may have existed in service, he now has high blood pressure and not low blood pressure. As he does not have a current disability of low blood pressure, there can be no valid claim for this condition. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

REASONS FOR REMAND

12. Mental disorder

The Veteran contends that he suffers from a psychiatric disorder, to include depression, anxiety, bi-polar disorder and/or PTSD. In his Notice of Disagreement dated June 2019, he listed two traumatic events that he experienced in service: (1) involving in a car accident at Seneca Army Depot killing fellow service members, and (2) witnessing sexual violence against Private First Class Harris of 295 MR Company committed by the 833 Ord Personnel. In his statement dated April 2021, he stated that the car accident
valid claim for this condition. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

REASONS FOR REMAND

12. Mental disorder

The Veteran contends that he suffers from a psychiatric disorder, to include depression, anxiety, bi-polar disorder and/or PTSD. In his Notice of Disagreement dated June 2019, he listed two traumatic events that he experienced in service: (1) involving in a car accident at Seneca Army Depot killing fellow service members, and (2) witnessing sexual violence against Private First Class Harris of 295 MR Company committed by the 833 Ord Personnel. In his statement dated April 2021, he stated that the car accident occurred in 1981, and that due to his incarceration, his wife was in the process of obtaining affidavit in support of his PTSD claim.

STRs in January 1982 showed that the Veteran requested psychology analysis to determine if he should remain on duty. He reported symptoms of restlessness and difficulty sleeping.

VA treatment records in August 2006 showed that the Veteran reported having experienced serious depression and anxiety.

Records from Michigan Department of Correction Health Service in December 2016 and April 2017 diagnosed the Veteran with adult antisocial behavior, and antisocial personality disorder.

No VA psychiatric examination has been provided. Further development is necessary.

The matter is REMANDED for the following actions:

1. Verify the two in-service stressors that the Veteran stated in his NOD dated June 2019 (the car accident and sexual assault incident).

2. Coordinate with the Veteran's representative and/or his confinement facility to schedule the Veteran for a VA psychiatric examination. If an examination is not possible, a medical opinion should be obtained. The examiner should diagnose any current acquired psychiatric disability, to include PTSD. If an acquired psychiatric disability (other than PTSD) is diagnosed, the examiner should opine on whether it is at least as likely as not (50 percent or greater probability) that such a psychiatric disability either began during or was otherwise caused by her military service? Why or why not?

If PTSD is diagnosed, the examiner should identify the stressor(s) that is used to support the diagnosis, to include whether it was the result of involving in a car accident killing fellow service members or witnessing sexual violence committed against a fellow service member? Why or why not?

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Q. Wang, 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.

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