Citation Nr: 1602281	
Decision Date: 01/20/16    Archive Date: 01/27/16

DOCKET NO.  11-09 410	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a low back disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Churchwell, Associate Counsel


INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from September 1983 to February 1984 and on active duty from May 1986 to January 1987.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional office (RO) in Waco, Texas.

The Board previously remanded this matter in May 2014 for further development and examination.


FINDING OF FACT

The evidence of record, including Veteran's lay statements, do not support a finding that the Veteran's low back disorder had onset during active duty and has continued since service.


CONCLUSION OF LAW

The criteria for service connection for a low back disorder have not been met.  §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative of any information and evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).  The notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  For service-connection claims, the notice should address the downstream elements of disability rating and effective date.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VA provided adequate notice in a letter sent to the Veteran in August 2009.

VA has a duty to assist a claimant in the development of a claim.  That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has associated the Veteran's service treatment records and VA treatment records with the claims file and afforded the Veteran with adequate examinations.  The examiners considered the relevant history, provided a detailed description of the conditions, and provided an extensive analysis to support the conclusions reached.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  

Merits

Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and includes any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101 (24) (West 2014); 38 C.F.R. § 3.6 (2015). 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015).  To establish service connection, 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.  Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

In this case, the Veteran has been diagnosed with degenerative disc disease of the lumbosacral spine.  Arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)).

Service connection may also be established with certain chronic diseases, including arthritis, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

The record includes a treatment note dated March 2007 which provided a diagnosis of degenerative disc disease of the lumbosacral spine and indicated it was worsening.  Moreover, a June 2014 VA examiner diagnosed the Veteran with intervertebral disc syndrome, lumbosacral strain and bilateral chronic lumbar spine radiculopathy.  Dr. E.P.R. diagnosed degenerative disc disease as of October 2008 in a June 2014 disability benefits questionnaire.  These diagnoses satisfy the first prong of the service connection claim.

Relating to an in-service incurrence of the disease or injury, the Veteran's service treatment records from November 1986 document treatment for pain after lifting heavy items in the supply room.  Testicular pain was assessed, however, not back pain.  

Regarding a causal relationship between the Veteran's low back disorder and his service, a disability benefits questionnaire was completed for the Veteran's back in June 2014.  Chronic low back pain specifically after activities such as bending or stooping were reported during the examination.  However, while objective medical findings were reported regarding the Veteran's low back disorder, no opinion regarding a causal connection with service was rendered.  

A VA examination was also performed in June 2014, in satisfaction of the Board's May 2014 remand.  The Veteran reported to the examiner that his history of low back pain began while running during basic training boot camp in 1983 when trying to wear boot inserts.  When he stopped wearing the inserts, the back pain resolved.  Later, he reported back pain with lifting furniture while in supplies in the Army.  He also reported low back pain when working at Lowe's while lifting a mower, about two months after completion of his military service.  

The June 2014 VA examiner opined the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury.  In support of that opinion, the examiner stated the evidence of record does not support a lower back disorder, acute or chronic, being diagnosed or treated during military service, despite the 

Veteran giving a history of low back pain on two separate occasions.  Furthermore, the current clinical examination findings for the low back do not correlate with the past symptoms of testicular strain as the groin pain that occurs intermittently is not described as testicular pain, which was the injury noted in service.  The examiner also indicated it is more likely that the Veteran's current lumbar spine condition is the result of natural aging and residuals from multiple lower back sprain/strain injuries occurring during employment and at his house, after the completion of military service.

The Board finds the June 2014 VA examiner's opinion to be well reasoned and thorough, having considered the entire record, including available service treatment records, as well as the Veteran's historical accounts of his back pain in service and providing specific medical evidence for the opinions rendered.  Therefore, the June 2014 examination report warrants probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that "most of the probative value of a medical opinion comes from its reasoning" and that "[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions").  

The Board has considered the Veteran's assertions that the back injuries he experienced in service caused his present low back disorder.  However, as a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of his current low back disorders.  See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).

Therefore, in light of the well-reasoned negative nexus opinion provided in the June 2014 VA examination, which is afforded probative weight, the preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder.  Therefore, this claim is denied.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015).



ORDER

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



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs