THORACOLUMBAR OR LUMBAR SPINE LIMITATION OF MOTION

K. A. BANFIELD · 2022 · Case ID: 22060633

MIXED

Summary

The veteran, who served from October 1984 to April 1992, appeals the denial of service connection for a low back condition. The Board found that while the veteran has a current low back disability, the evidence does not establish a service connection. The veteran reported an in-service incident where he was hit in the face and landed on his buttocks, experiencing back pain thereafter. However, service treatment records indicated a muscle injury to the right paraspinal region, not directly to the buttocks, and no ongoing complaints at separation. Private treatment records and a VA examination in May 2019 diagnosed lumbar sprain/strain and degenerative arthritis, with the veteran attributing onset to the in-service incident and lifting heavy equipment. The Board gave significant weight to a June 2022 VA addendum opinion, which found the current degenerative spine disease to be age-related and not linked to the minor in-service injury, noting a 20-year gap before radiographic manifestations. The Board concluded the veteran's lay assertions were not competent medical evidence and that the evidence preponderated against a direct service connection. The claim was denied as the benefit of the doubt doctrine was not applicable. The case was remanded for further development regarding bowel disability (IBS) and nonalcoholic fatty liver disease.

Rationale

No in-service records of significant ongoing back condition at separation.; VA examiner opined current low back disability less likely than not related to service.; Degenerative spine disease considered age-related, not caused by minor in-service injury.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-15 021

Full Decision Text

Citation Nr: 22060633
Decision Date: 10/28/22 Archive Date: 10/28/22

DOCKET NO. 18-15 021
DATE: October 28, 2022

ORDER

Entitlement to service connection for a low back condition is denied.

REMANDED

Entitlement to service connection for bowel disability, claimed as irritable bowel syndrome (IBS), is remanded.

Entitlement to service connection for nonalcoholic fatty liver disease is remanded.

FINDING OF FACT

A chronic low back disability was not shown in service or for many years thereafter, and the current low back disability is not related to service.

CONCLUSION OF LAW

The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1984 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 and September 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.

This matter was last before the Board in March 2022, when it was remanded for further development.

Service connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, 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).

In cases where a veteran served continuously for 90 days or more during active service and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

The Board notes that the Veteran did not respond to VA's March 2022 request to provide medical authorization for his medical providers so as to enable VA to obtain the medical records from these clinicians. He also did not otherwise submit the treatment records into evidence. As such, the Veteran did not assist in providing additional evidence to the VA that may have been relevant to his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.").

1. Entitlement to service connection for a low back condition

The Veteran seeks service connection for a low back condition. He testified that he was hit in the face when working on the flight line in service. He landed on his buttocks and since then has being taking over-the-counter medicine for his back.

Service treatment records reveal that the Veteran was hit in the right costovertical angle (CVA) region with elbow while playing basketball. He was assessed with muscle injury; physical examination revealed tender right paraspinal region, otherwise unremarkable. The Veteran declined to have a separation examination.

Private treatment records indicate that in July 2012, the Veteran reported lower back pain. In November 2012, he reported low back pain which developed gradually several years ago, noting that the first episode was associated with exercise and working in the yard. The examiner diagnosed lumbar sprain/strain. A July 2014 imaging study revealed mild facet arthritis at L4-L5 with intervertebral disc space and facet joints well maintained, normal sacroiliac joints, and no soft tissues abnormalities.

The Veteran underwent a VA examination in May
while playing basketball. He was assessed with muscle injury; physical examination revealed tender right paraspinal region, otherwise unremarkable. The Veteran declined to have a separation examination.

The Veteran underwent a VA examination in May 2019, during which he was diagnosed with lumbosacral strain, degenerative arthritis of the spine and intervertebral disc syndrome. He reported that the condition began while working in service when he was hit in the face and thrown on the ground which was concrete. He landed on his buttocks. He also indicated that lifting heavy equipment while on active duty service could have caused it. He reported self-medicating after that incident in service. The examiner provided an opinion that the Veteran's current low back disability was less likely than not incurred in or caused by service. In providing his opinion, the examiner explained that there were no records involving diagnostics or complaints of back problems.

An addendum opinion was obtained in June 2022 pursuant to the Board's March 2022 remand. The June 2022 VA examiner opined that it is less likely than not that the Veteran's degenerative spine disease, including degenerative joint disease, diagnosed as mild in 2014, had its nexus in service or is due to events in service. The examiner provided the rationale that the injury in service was acute and self-limited, with no evidence of an ongoing condition at separation. Though the separation examination was not located, it is highly unlikely a significant ongoing back condition would have gone unnoted or unreported at separation. Furthermore, there is a 20 plus year span from service until the diagnosis of the Veterans age-appropriate, naturally occurring degenerative spine disease in 2014. Even allowing a one to two year lag from onset of degenerative spine disease and radiographic manifestations to appear, this places the earliest onset as in or around 2012. The examiner explained that degenerative joint disease is a naturally occurring, age-related condition due to normal wear and tear over a lifetime, with associated disc desiccation when degenerative disc disease is present. The minor muscle injury incurred in service would not cause degenerative spine disease. Citing to medical research, the examiner explained that although trauma to a joint or the spine can predispose a person to degenerative changes, there is no injury of the sort to do so in this case. There is no evidence of a traumatic injury of the bony spine. Any claim of onset in service with continuity of symptoms in service is belied by medical evidence to the contrary, including the injury sustained in service, the pathophysiology of the Veteran's currently diagnosed conditions and the clear demarcation of onset 20 years post-service. The rigors of military service, regardless of the Veteran's military occupation specialty, are conceded, but did not cause the Veteran's naturally occurring degenerative spine disease.

The Veteran has been diagnosed during the appeal with a back condition, so the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. The weight of the evidence, however, is against the claim for service connection for a low back condition on a direct basis. The Board acknowledges the Veteran's assertions regarding his low back condition; however, the June 2022 VA examiner provided an opinion that the currently diagnosed back conditions are less likely than not related to service. This opinion, which stands uncontroverted in the record and is based on the Veteran's assertions and the medical evidence specific to him, is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).

While the Veteran believes that his current low back condition is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of a back condition are matters not capable of lay observation and require medical expertise to determine. Moreover, whether the symptoms the Veteran reports he experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West,
295, 302-04 (2008).

The weight of the evidence is also against the claim for a service connection for a low back condition on a presumptive basis under 38 C.F.R. § 3.309(a) since there is no indication the Veteran had arthritis in his back within one year of his April 1992 discharge from active duty service.

As a final matter, under legislation specific to Persian Gulf War veterans, service connection may also be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more during a presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). However, the Veteran's back complaints have been attributed to known clinical diagnoses of lumbosacral strain, degenerative arthritis of the spine and intervertebral disc syndrome. Thus, presumptive service connection based on Persian Gulf legislation is not warranted.

In sum, the weight of the competent and probative evidence is against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and the claim for service connection for a low back condition is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for bowel disability, claimed as IBS

In August 2015, a VA examiner found that the Veteran had diagnoses of chronic reactive inflammatory changes and small bowel malformation with fistula and diverticulae. The June 2022 VA examiner determined that diagnosis precludes a diagnosis of IBS, as IBS is a diagnosis of exclusion.

Remand is required to obtain an addendum medical opinion. While the June 2022 VA examiner adequately addressed why the Veteran did not have IBS and that even if he did, it was not related to service, the rationale is unclear on whether diagnosed chronic reactive inflammatory changes and small bowel malformation with fistula is not related to service.

2. Entitlement to service connection for nonalcoholic fatty liver disease is remanded.

In addition to asserting that his liver disease is related to toxic chemicals he was exposed to as an aircraft mechanic during service and environmental exposures during his service in the Persian Gulf, the Veteran alleges the condition is related to high cholesterol during service. As the Veteran was not diagnosed with fatty liver disease until December 2011, years after discharge, an opinion is needed on whether the condition is etiologically related to high cholesterol in service.

The matters are REMANDED for the following action:

1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his claimed disabilities. After securing the necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such.

2. After the above is completed to the extent possible, forward the claims file to a VA examiner to obtain an addendum opinion regarding the Veteran's service connection claim for a bowel condition. If an examination is deemed necessary to respond to the question presented, one should be scheduled.

Following review of the claims file, the examiner should opine whether it is at least as likely as not (approximate balance) that the Veteran's diagnosed chronic reactive inflammatory changes; small bowel malformation with fistula is related to service, including chemicals used as a mechanic, environmental exposures during his Persian Gulf War service, or his gastroenteritis in April 1991. A complete rationale must be given for all opinions and conclusions expressed.

3. After records development is completed, forward the claims
to the extent possible, forward the claims file to a VA examiner to obtain an addendum opinion regarding the Veteran's service connection claim for a bowel condition. If an examination is deemed necessary to respond to the question presented, one should be scheduled.

3. After records development is completed, forward the claims file to a VA examiner to obtain an addendum opinion regarding the Veteran's service connection claim for nonalcoholic fatty liver disease. If an examination is deemed necessary to respond to the question presented, one should be scheduled. After review of the claims file and examination of the Veteran, the examiner should opine whether it is at least as likely as not (approximate balance) the Veteran's nonalcoholic fatty liver disease is etiologically related to his claimed high cholesterol during service. A complete rationale must be given for all opinions and conclusions expressed.

4. If the claim remains denied, issue a supplemental statement of the case, as appropriate.

K. A. BANFIELD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Asare, Associate 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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