Citation Nr: 23011405 Decision Date: 02/23/23 Archive Date: 02/23/23 DOCKET NO. 17-36 456A DATE: February 23, 2023 ORDER 1. Entitlement to service connection for a thoracolumbar spine disability, to include herniated disc of the lumbar spine with degenerative disc disease (claimed as lower back disease and injuries), is denied. 2. Entitlement to service connection for chronic left lower extremity radiculopathy, to include as secondary to a lumbar spine disability, is denied. FINDINGS OF FACT 1. The Veteran's thoracolumbar spine disability did not have its onset in service, within one year of separation, and is not otherwise related to service. 2. The Veteran's left lower extremity radiculopathy did not have its onset in service, within one year of separation, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Air Force from June 1982 to October 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2014 rating decision from the agency of original jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge in a virtual Board hearing in September 2022. 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). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran contends that he experienced recurrent back pain beginning in service in approximately 1985, which worsened over time, particularly after the Veteran's separation from service, culminating in an acute injury in 2010. The Veteran has stated that he did not pursue medical treatment during his time in service for back symptoms because they did not coincide with regularly scheduled medical appointments. The Veteran believes that his left lower extremity radiculopathy was caused by the lumbosacral spine disability. The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the Veteran's service-connection claims. The reasons follow. 1. Thoracolumbar spine disability The record shows the Veteran to have a history of degenerative disc disease and, therefore, the Veteran is found to have a present disability for purposes of establishing service connection. Additionally, the Veteran reported lower back pain, stiffness, and spasm in 2002, prior to his discharge from active duty. Thus, the Veteran is found have an in-service incurrence or aggravation of a disease or injury. However, the evidence does not demonstrate a causal relationship between the present disability and the disease or injury incurred or aggravated during service. The Board notes that the Veteran's claim is largely premised on his assertion that he experienced periodic back pain beginning in 1985, approximately once every two years through 1998, continuing throughout his active duty service and worsening thereafter. He has indicated that he "toughed it out," did not seek treatment because symptoms never occurred during scheduled medical appointments, and that his back symptoms were often overshadowed by more severe medical concerns, such as shoulder and neck injuries. However, the Board does not find the Veteran's assertion relating to the onset of his symptoms to be credible. Notably, the record contains significant evidence, including the Veteran's own contemporaneous reporting of his condition, which contradicts the Veteran's claim, and does not support the onset of a chronic lumbar spine condition during service. The Veteran received normal clinical evaluations of the spine on Reports of Medical Examination (RME) in February 1987, January 1992, and December 1996. Normal physical examinations were also noted in June 1986 and March 1987. Notably, on a Report of Medical History in December 1996, the Veteran specifically denied current or past history of recurrent back pain and stated that he was in "Excellent" health while also documenting his remote history of tuberculosis. Such evidence strongly rebuts the Veteran's claim of experiencing intermittent back pain beginning in 1985. Even if the Veteran was "toughing it out" and did not experience symptoms concurrent with an examination, it does not explain why the Veteran would deny a history of relevant symptoms when specifically asked, particularly when the Veteran demonstrated that he was reporting other relevant medical history that was not active at the time, such as receiving treatment for tuberculosis in 1985. On the second page of the Report of Medical History, the examiner documented that the Veteran's only complaint was a papule on the scalp. Additionally, as discussed below, when the Veteran first reported back pain in 2002, while still in service, he did not indicate a prolonged history of recurrent symptoms dating back more than a decade, and described the onset of his symptoms as beginning much more recently. The record does not show that the Veteran reported symptoms relating to a back disability until June 2002, when the Veteran sought treatment after experiencing back pain for seven days following a reported back spasm. The following month, the Veteran reported pulling a muscle in his back while lifting a piece of heavy furniture. On examination in September 2002, the Veteran reported lower back pain, which he attributed to "holding his spine stiff" for approximately one year. It is again noted that when initially seeking treatment in June 2002, the Veteran reported experiencing low back pain for seven days. Following a physical examination of the spine, the Veteran was not diagnosed with a back disability, despite several other diagnoses rendered based on examination findings. The examiner documented the Veteran's lumbar lordosis was normal, as was his lumbar spine range of motion. Such clinical findings do not suggest that the Veteran had a chronic disability onset during service. Despite the Veteran's reports of symptoms in 2002, the evidence indicates that the Veteran did not experience continuity of symptomology thereafter and that his 2002 symptoms were acute and transient in nature and not associated with a chronic disability. This is supported by the normal clinical evaluation on examination in September 2002, one month prior to the Veteran's separation from service. Following service, the evidence does not establish continued lumbar spine symptoms or the onset of a chronic thoracolumbar spine condition for multiple years. On VA examination in January 2004, the Veteran reported that he was building a house. He stated that he may become short of breath at times when lifting, but stated that he is capable of running two miles in about 10 or 11 minutes, which he did at least once weekly. The Veteran underwent a physical examination in October 2004 with no abnormal clinical findings relating to the thoracolumbar spine and the examiner documented that there was no tenderness in the lumbar spine. The Veteran reported pain in the shoulder and ankle, but did not report back pain. Such findings continue to support that the Veteran did not have a chronic lumbar spine disability or continuity of symptomology following service discharge in 2002 Treatment records in 2005 and 2006 described the Veteran as an active young male and do not document reports of back pain or other relevant symptoms. The records show he maintained an active lifestyle in 2007, reported playing tennis and that he was volunteering to coach a high school tennis team. Treatment records thereafter described the Veteran as an avid tennis player and official. The record does not establish a chronic disability until late 2010. In November 2010, the Veteran reported that approximately two and one-half month earlier, he felt a sharp pain in the lower left back while doing a morning stretch. The Veteran stated that similar occurrences in the past "worked itself out," but that he had been doing work where he bends/uses his back. Then, in November 2010 while officiating a tennis match, the Veteran was doing a twisting movement and abruptly developed left leg numbness with left lower back pain shooting down his leg. He was diagnosed with an acute lower back injury with diminished strength in the left leg. He was later determined to have a herniated disc requiring a discectomy in January 2011. An October 2011 treatment record indicates that the Veteran's tennis officiating injury occurred while performing repetitive bending and twisting, with sudden severe back and leg pain. The Veteran underwent a VA examination of the spine in September 2014. The Veteran was diagnosed with degenerative arthritis of the spine. The examiner found it less likely than not that the Veteran's disability was incurred in or caused by the Veteran's claimed in-service injury, event or illness. The examiner's rationale stated that the Veteran had an acute herniated disc in 2010 from a twisting injury requiring back surgery, adding that the Veteran played tennis and was active in exercise until then. The examiner noted that no lumbar condition was found at his September 2002 examination and that no chronicity of a low back condition was reported until his injury in 2010. The Board finds this examination to be probative, as it was performed by a qualified medical professional, who reviewed the evidence of record and provided a reasoned rationale for the stated opinion, which is supported by the longitudinal evidence. Thereafter, the Veteran alleged that nothing physically happened to him to cause his acute injury in 2010. However, this is not supported by the longitudinal evidence, including the Veteran's contemporaneous reporting of the incident. The Board does not find this assertion to be credible and notes that the Veteran's history of reporting relevant symptoms are inconsistent over time. Notably, in November 2010 the Veteran reported experiencing a sharp pain while stretching about two and one-half months earlier, and that he had been doing a lot of work where he bends/uses his back. Then he reported that he was doing a twisting movement in November 2010 and abruptly developed left leg numbness with pain and left lower back pain. Thus, multiple medical records at the time document contemporaneously the Veteran's own reporting that his injury and symptom onset were related to physical activity that he was performing concurrently. In May 2021, the Veteran submitted a medical opinion from private treatment provider Justin DeLange, D.O. Dr. DeLange noted the Veteran's reports of back pain from 1985 to 1998, with worsening symptoms reported thereafter. He stated that a 2020 MRI showed "possible cerebrospinal fluid (CSF) leak at T5-T6 with morphologic changes to cord likely secondary due to extra-arachnoid fluid accumulation." Dr. DeLange noted mild degenerative changes in the Veterans thoracic spine, with a possible etiology of CSF leak. Dr. DeLange diagnosed the Veteran with spontaneous intracranial hypotension due to cerebrospinal fluid leak possibly due to thoracic degenerative joint disease. He stated that degenerative changes in the spine may be a risk factor for CSF leak and that degenerative disc disease is due to years of physical strenuous work. Dr. DeLange stated that he was unaware of any other risk factors that could have precipitated the CSF leak, such as connective tissue disease, and that, in his opinion, it is at least as likely as not that the Veteran's condition is a direct result of his back injury as due to his military service. The Board finds Dr. DeLange's opinion not to be probative. His opinion is based predominantly on the Veteran's self-reporting of back pain in service, beginning in 1985, without any discussion of objective medical findings from the Veteran's period of active duty, or an explanation as to the Veteran's own denial of relevant symptoms during the same period. As discussed above, the Board has found the Veterans assertions in this regard to be not credible. The U.S. Court of Appeals for Veterans Claims has held that opinions based on inaccurate factual premises are not entitled to probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Dr. DeLange's opinion also failed to discuss findings that demonstrate a lack of continuity of symptomology following service discharge, as well as evidence indicating the Veteran's high activity levels thereafter and the circumstances surrounding the Veteran's 2010 injury. Dr. DeLange's opinion makes a broad conclusion based on findings that are not supported by the longitudinal evidence of record and, therefore, is not probative. The evidence persuasively weighs against the Veteran's claim for service connection. The Veteran was not diagnosed with a chronic thoracolumbar spine disability during active duty and was not shown to experience continuity of symptomology for years thereafter. The competent and probative evidence of record supports that the Veteran's current condition relates to his acute injury suffered in 2010, as supported by the opinion of the September 2014 VA examiner. As to presumptive service connection involving a chronic disease, such as degenerative joint disease, the evidence does not establish the presence of an arthritic condition in the Veteran's thoracolumbar spine within one year following service discharge. The Veteran was not documented to have a thoracolumbar spine disability on examination in September 2002, and treatment records do not document the onset of a chronic back disability until 2010, approximately eight years after the Veteran's discharge from active duty service. Accordingly, service connection on a presumptive basis for a chronic disease is not warranted. For all the reasons stated herein, the Board finds the evidence persuasively weighs against the claim for service connection for a thoracolumbar spine disability; therefore, the benefit of the doubt doctrine is not for application, and the Veteran's claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Left lower extremity radiculopathy The Veteran believes that his left lower extremity radiculopathy is secondary to his thoracolumbar spine disability. However, as the Veteran is not service connected for any such disability, a theory of secondary service connection is not available to the Veteran. Accordingly, the Board will address the issue of entitlement to service connection on a direct basis. As to evidence of a present disability, treatment records show the Veteran to have left lower extremity radiculopathy. Thus, the Veteran does have a present disability. However, the record does not show an in-service incurrence of a disease or injury. The Veteran was not treated for or diagnosed with radicular symptoms or a left leg disability during service. On examination in September 2002, one month prior to the Veteran's service discharge, the Veteran was not indicated to have a left lower extremity disability and a neurological examination was normal with no motor or sensory loss. Treatment records show that an examination of the lower extremities completed in October 2004 was normal and he stayed active with tennis and running thereafter. The Veteran was not shown to have left lower extremity radiculopathy or related symptomology until 2010, as documented above. Thus, the Veteran is not entitled service connection on a presumptive basis for a chronic disease with an onset within one year of service discharge. The Veteran reported that he was told that his condition resulted from his January 2011 discectomy, which is also supported by the findings of the Veteran's September 2014 VA examiner, who documented normal neurological findings on examination from the Veteran's active duty service until 2010. For all the reasons laid out above, the Board finds the evidence persuasively weighs against the claim for service connection for left lower extremity radiculopathy. The Veteran's did not incur an in-service injury or disease relating to this disability and, rather, the record establishes that the condition is secondary to the Veteran's nonservice-connected thoracolumbar spine disability. As the evidence persuasively weighs against the claim, there is no doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.