DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

JAMES A. DEFRANK · 2024 · Case ID: 24027914

DENIED

Summary

The veteran, who served from November 1982 to March 1983 and again from November 1990 to June 1991, appeals the denial of service connection for lumbar spine disability (claimed as lumbar pain) and right leg radiculopathy. The veteran contended that the lumbar spine condition was incurred in service due to his MOS as a "13M" (missile launch rocket systems operator) or was secondary to his service-connected pes planus. The Board found competent evidence of a current lumbar spine disability and radiculopathy, and that the veteran's credible statements about in-service lumbar stress met the second element for service connection. However, the Board found the third element, a nexus to service, was not met by the persuasive weight of the evidence. Medical records showed the first treatment for lumbar issues was in 2004, over a decade after service, and the veteran denied recurrent back pain in service. A January 2021 VA examination opined the lumbar spine disability was less likely than not related to service, citing alternative factors like post-service occupation, aging, and obesity. This opinion was found highly probative and persuasive. The Board also denied secondary service connection for the lumbar spine, finding the pes planus did not alter gait or aggravate the lumbar condition, as gait was normal in examinations. The radiculopathy was found to be due to the lumbar spine disability, which was denied service connection. The Board denied both claims.

Rationale

No in-service complaints or treatment for lumbar spine injury.; Veteran denied recurrent back pain in service.; VA examiner opined less likely than not related to service.; Alternative factors cited: post-service occupation, aging, obesity.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-19 337

Full Decision Text

Citation Nr: 24027914
Decision Date: 07/31/24 Archive Date: 07/31/24

DOCKET NO. 17-19 337
DATE: July 31, 2024

ORDER

Entitlement to service connection for degenerative disc and joint disease of the lumbar spine (claimed as lumbar pain) is denied.

Entitlement to service connection for right leg radiculopathy is denied.

FINDINGS OF FACT

1. The Veteran's current lumbar spine disability was not manifested in service or within one year of separation from service and is not otherwise related to service; or shown to be caused by or aggravated by a service-connected disability.

2. The Veteran's current radiculopathy of the right lower extremity was not manifested in service or within one year of separation from service and is not otherwise related to service; or shown to be caused by or aggravated by a service-connected disability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

2. The criteria for entitlement to service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1982 to March 1983 and from November 1990 to June 1991.

This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a March 2020 Board hearing before the undersigned Acting Veterans Law Judge, and the transcript of this hearing has been associated with the claims file.

These matters, along with the issues of entitlement to service connection for a muscle pain and joint pain were previously before the Board in June 2020, at which time they were remanded for further development. The January 2021 SSOC provided instructions for continuing under the legacy system for appeals, informed the Veteran that he could opt-in to the modernized review system for appeals, and provided instructions for continuing under the modernized review system. In May 2022, the Veteran submitted a VA Form 20-0995 and indicated election of processing under the modernized review system, specifically a request for a Supplemental Claim review lane. The Veteran specified the issues of entitlement to service connection for chronic muscle and joint pain disabilities and elected review under the modernized review system. Therefore, those issues are no longer before the Board.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Arthritis is a chronic condition listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303 (b) is applicable. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a).

Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability.
subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Arthritis is a chronic condition listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303 (b) is applicable. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a).

Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38C.F.R. §3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury.

Additionally, pursuant to 38 U.S.C. § 1117, "a Persian Gulf Veteran with a qualifying chronic disability" that manifests to a degree of 10 percent or more before December 31, 2021, may be entitled to compensation. See 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1); see also Extension of the Presumptive Period for Compensation for Gulf War Veterans, 81 Fed. Reg. 71382 (Oct. 17, 2016) (to be codified at 38 C.F.R. pt. 3). As the Veteran's personnel records show that he served in the Southwest Asia theater of operations from October 1990 to April 1991, these provisions apply to his service.

There are three avenues for finding that a chronic disability may qualify for presumptive service connection pursuant to 38 U.S.C. § 1117. Qualifying chronic disabilities include those that result from (1) "[a]n undiagnosed illness," (2) "[a] medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to include irritable bowel syndrome) that is defined by a cluster of signs or symptoms," or (3) "[a]ny diagnosed illness that the Secretary determines in regulations... warrants a presumption of service connection." See 38 U.S.C. § 1117(a)(2)(A), (B), (C); 38 C.F.R. § 3.317(a)(2)(i)(B).

VA has defined a medically unexplained chronic multi symptom illness as "a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features, such as fatigue, pain, a disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317(a)(2)(ii).

Along with the three examples of a medically unexplained chronic multi symptom illness provided by 38 U.S.C. § 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multi symptom illness that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. See 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b).

The provisions of 38 C.F.R. § 3.317(a)(ii) provide that, in order to be considered a qualifying chronic disability, a disability "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis." The definition of "medically unexplained chronic multi symptom illness" includes a "diagnosed illness without conclusive pathophysiology or etiology."

The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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.

In relevant part, 38U.S.C. §1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence"
definition of "medically unexplained chronic multi symptom illness" includes a "diagnosed illness without conclusive pathophysiology or etiology."

In relevant part, 38U.S.C. §1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377(Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

1. Entitlement to service connection for degenerative disc and joint disease of the lumbar spine (claimed as lumbar pain) is denied.

2. Entitlement to service connection for right leg radiculopathy is denied.

The Veteran asserts that service connection is warranted for lumbar spine disability because it was incurred in service or otherwise a result of service, to include lumbar stress due to his military occupation of "13M." Alternatively, he asserts that his lumbar spine disability and associated radiculopathy are secondary to his service-connected pes planus. See April 2015 Notice of Disagreement; March 2020 Board hearing.

After a careful review of the evidence of record, and for the reasons that will follow, the Board finds that the persuasive weight of the evidence is against a finding that service connection for a lumbar spine disability and radiculopathy of the right lower extremity are warranted.

Regarding the first element of service connection, evidence of a current disability, there is competent evidence of a current lumbar spine disability and radiculopathy of the right lower extremity. The October 2016 VA examination report includes diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome (IVDS) and left leg radiculopathy. Thus, the first element of a service connection claim is met for both claims.

As to the second element of an in-service disease or injury, there is no documentation of a lumbar spine injury or radiculopathy in service. However, the Veteran has stated that he experienced stress to his lumbar spine during his time operating missile launch rocket systems. Therefore, given the Veteran's DD-214 confirming his MOS, and his credible statements that he experienced stress to his lumbar spine during service, the second element of a service connection claim is met. Additionally, the Veteran has been service-connected for pes planus.

Medical records reveal the Veteran first sought treatment for a lumbar spine disability and associated radiculopathy in January 2004. Despite reporting other disabilities, such as a hernia, a venereal infection, hearing loss, and recent weight gain, the Veteran explicitly denied recurrent back pain on multiple occasions in the service treatment records, including a post-service December 1995 periodical examination. Additionally, a clinical examination as late as August 2000 shows clinically normal back and legs.

The facts establish that the first two elements of service connection are met. That fact notwithstanding, the Board finds that the third element, a nexus between the current disabilities and service, has not been met by the persuasive weight of the evidence.

The Veteran was afforded a VA lumbar spine examination in October 2016. The examiner provided a negative nexus opinion as to the secondary theory of entitlement for the lumbar spine disability. However, the Board found in its June 2020 remand that
recent weight gain, the Veteran explicitly denied recurrent back pain on multiple occasions in the service treatment records, including a post-service December 1995 periodical examination. Additionally, a clinical examination as late as August 2000 shows clinically normal back and legs.

As to direct service connection for the lumbar spine disability, in January 2021, a VA examiner provided an opinion that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that not only was there no evidence of back complaints or treatment in service, but that the Veteran also affirmatively denied lumbar pain at multiple times during and since service. The examiner stated that the Veteran did not seek treatment for lumbar pain until a decade after separation from service. Instead, the examiner cited the Veteran's post-service occupation lifting heavy tires, the aging process, and obesity as alternative contributing factors to the Veteran's current lumbar spine disability.

As to secondary service connection for the lumbar spine disability, in January 2021, a VA examiner provided an opinion that the Veteran's lumbar spine disability was less likely than not secondary to or aggravated by his pes planus disability. The examiner addressed the Veteran's theory that he experienced an altered gait due to his pes planus, which in turn resulted in or aggravated his lumbar spine disability. The examiner stated that the Veteran's gait had been cited as normal during the present examination as well as in 2008, 2016 and 2018.

During the Most recent January 2021 VA examination, the Veteran reported the history of his claimed back disability as having its onset in the 2000s and asserted it was secondary to his pes planus disability.

Additionally, the January 2021 medical examination indicated that the Veteran's right lower extremity radiculopathy was due to his lumbar spine disability.

The Board finds the January 2021 VA medical opinions and examinations to be highly probative. They were conducted by a medical professional and contained compelling rationale, persuasively ascribing the Veteran's disabilities to causes other than his service or service-connected disabilities.

To the extent that the Veteran alleges that his current lumbar spine disability is related to service, he has not offered probative evidence in support of his contentions. Lay evidence may be competent to establish medical etiology or nexus. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." A diagnosis of a lumbar spine disability requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value. To the contrary, a VA examiner found, that the disability was attributable to joint aging and chronic overuse of the low back over duration of many years and is independent of from the Veteran's active military career.

Therefore, given the reasons above, the Board finds that the most probative evidence of record is the opinion of the January 2021 VA examiner. The VA medical opinion provides competent and probative evidence that weigh against the Veteran's claim because the VA examiner reviewed the claims file and provided a medical opinion supported by well-reasoned rationale that considered the Veteran's specific medical history and contentions. Monzingo v. Shinseki, 26 Vet. App. 97, 105-106 (2012).

Based on the above, the Board also finds that there is no competent evidence that arthritis manifested within one year from his June 1992 separation from service. Arthritis is diagnosed primarily on clinical findings, such as x-rays or specialized testing, such as MRI, which the Veteran is not competent to conduct or interpret. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis established by x-ray findings); Diagnostic Code 5010 (traumatic arthritis established by x-ray findings); Diagnostic Code 5002 (rheumatoid arthritis must be "objectively confirmed by findings" that show limitation of motion). Cf. 38 C.F.R. § 4.66 (indicating the usual way to diagnose arthritis is by x-ray, which is also required to see arthritic changes).

Thus,
1992 separation from service. Arthritis is diagnosed primarily on clinical findings, such as x-rays or specialized testing, such as MRI, which the Veteran is not competent to conduct or interpret. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis established by x-ray findings); Diagnostic Code 5010 (traumatic arthritis established by x-ray findings); Diagnostic Code 5002 (rheumatoid arthritis must be "objectively confirmed by findings" that show limitation of motion). Cf. 38 C.F.R. § 4.66 (indicating the usual way to diagnose arthritis is by x-ray, which is also required to see arthritic changes).

Thus, the earliest documentation of degenerative changes of the lumbar spine or the low back is in 2004. The evidence does not support a finding of arthritis of the low back earlier than 2004, and 2004 is more than 10 years after separation from service. The persuasive weight of the evidence is against a finding that arthritis manifested within one year from the Veteran's June 1991 separation from service. Therefore, a presumption of service connection based on the chronicity of arthritis is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.307, 3.309(a).

As to the radiculopathy of the lower right extremity, in January 2021, a VA examiner indicated that the Veteran's disability patter is not an undiagnosed illness as he is diagnosed with lumbar DDD with radiculopathy. She also opined that the Veteran's radiculopathy, is not a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. The examiner found that the Veteran's disability pattern is a disease with a clear and specific etiology and diagnosis and that it is less likely than not related to a specific exposure event/environmental hazard experienced by the Veteran during service in Southwest Asia.

Service connection for right lower extremity radiculopathy cannot be granted on a secondary basis to the claimed lumbar spine disability as the lumbar spine disability is denied herein. As the Veteran has not proffered probative evidence to support that his right lower extremity radiculopathy was due to his exposure in Southwest Asia nor contended that the right lower extremity radiculopathy was incurred in service, service connection is not warranted.

Additionally, the Board notes that VA has conceded that the Veteran participated in a toxic exposure risk activity (TERA) by conceding he had service in Southwest Asia during his period of active duty. Under 38 U.S.C. § 1168(a)(1), it provides that the Secretary of VA shall provide a veteran with a medical examination and obtain a medical opinion "if a veteran submits to the Secretary a claim for compensation for a service-connected disability [] with evidence of a disability and evidence of participation in a toxic exposure risk activity during" service. This requirement does not apply if the Secretary determines there is no indication of an association between the disability claimed by the veteran and the toxic exposure risk activity for which the veteran submitted evidence. 38 U.S.C. § 1168(c).

The Secretary has determined that claims based on physical trauma have no positive association with herbicide exposure. Thus, a TERA examination and medical opinion is not required in connection with the Veteran's claim for service connection for a lumbar spine disability. A TERA examination is separate from the examinations that were provided by VA during the appeal period.

In sum, the Board finds that the Veteran's current lumbar spine disability did not manifest in service, arthritis did not manifest within one year of separation from service, and is not etiologically related to his active duty military service and his radiculopathy of the right lower extremity did not manifest in service or within one year of separation from service, is not etiologically related to his active duty service, and is not secondary to a service-connected disability or disabilities. As the evidence persuasively weighs against the claims for service connection for a lumbar spine disability and radiculopathy of the right lower extremity, the benefit-of-the-doubt doctrine is not for application, and the claims are denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

James DeFrank

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. E. Geary

The Board's decision in this case is binding only with respect to

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