Citation Nr: 1647205 Decision Date: 12/19/16 Archive Date: 12/30/16 DOCKET NO. 13-10 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran had active service from November 1972 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by VA Regional Office (RO) in Oakland, California. In August 2016, the Veteran testified at a Board videoconference hearing conducted before the undersigned. A copy of the transcript has been associated with the claim folder. FINDING OF FACT Lumbar spine disability did not originate in service or until years thereafter, and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for lumbar spine disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5102, 5103, 5103A, and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2016); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with 38 U.S.C.A. § 5103 (a)-compliant notice in June 2011. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran was provided a VA examination with respect to the claim. The examination report adequately provided the findings necessary to a resolution to the appeal. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d) (2016). Service connection may be presumed for certain chronic diseases, including arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. 3.307, 3.309(a) (2016). However, as arthritis is not shown within a year after discharge from active service, the presumptions is not for application in this case. For such chronic diseases as specifically listed at 38 C.F.R. 3.309 (a), including arthritis, service connection may also be established by chronicity and continuity of symptomatology. 38 C.F.R. § 3.303 (b) (2016); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specifically, for the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service, or in the presumptive period, is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b) (2016). The Veteran claims that he has a lumbar spine disability as a result of active service. Specifically, he has indicated that low back pain noted in service was the result of him picking up a car in the Virgin Islands to change the tire. The Veteran also testified that he suffered from back pain in service and continues to suffer from the same symptoms which have worsened since that time. The Veteran's service treatment records shows that he was clinically assessed with a normal spine and reported no back pain in July 1972, November 1972, April 1973, and June 1973. A July 1973 service treatment record shows that the Veteran reported back pain from picking up a car while in the Virgin Islands. X-rays were negative for a fracture. The Veteran was assessed with lower back pain secondary to a ligament strain. The examining physician noted a suggestion of malingering. A September 1973 service treatment record shows that the Veteran complained of back pain and he was diagnosed with a lumbosacral sprain. An August 1976 service treatment record shows that the Veteran was assessed with a clinically normal spine. A September 1980 post service VA treatment record shows the Veteran reported that seven years prior, he injured his back from lifting a bus which caused back pain. X-rays showed that alignment was within normal limits. No soft tissue abnormalities were normal. The physician noted that disc herniation per se would not be seen on a LS spine series. The impression from the report was a normal study. A March 1990 private treatment record shows treatment for lower back pain. A CT scan showed spinal stenosis and bulging disc. A May 1991 private treatment record shows that the Veteran reported lower back pain since January 1990. A July 1999 private treatment record shows that the Veteran reported back pain since lifting a car during his active service. A January 2000 private treatment record shows that the Veteran was diagnosed with mild degenerative spurring and mild narrowing of the L5-S1 disc space. The treating physician noted that the Veteran's low back pain was emanating from the L4-5 and L/S1 disc segments. An August 2000 private treatment record shows that the Veteran was diagnosed with moderate central and lateral recess stenosis at L4-L5 due to the complying disc bulge and facet athropathy. A March 2002 private treatment record shows that the Veteran was diagnosed with chronic lower back pain. An October 2011 correspondence from the Veteran reports that he had back pain since he was 42 years old for the last 16 years. A June 2012 VA examination report shows that the Veteran injured his low back which was documented in his service treatment records when he lifted the back of a car in the Virgin Islands during active service. The examiner noted that there was no documentation on his exit examination in 1976 of a chronic, disabling condition. The examiner noted that the next treatment note available was four years after discharge from military service in 1980 with a diagnosis of facet sclerosis L5-S1. In 1995, the examiner noted that there was a medical note of low back pain with a CT scan showing degenerative changes with congenital spinal stenosis, unchanged since 1990. In 2000, the examiner noted that the Veteran had lumbar decompression L4-5, L5-S1. In 2010, the examiner noted that the Veteran had a L5 spinal fusion secondary to lumbar spinal stenosis. The examiner opined that there was no evidence of a chronic disabling condition at exit from the service. The examiner noted that the first documentation of treatment for a back condition after service was four years after discharge in 1980 and a CT scan in 1995,that indicated a congenital spinal stenosis which was as likely as not the cause of Veteran's current lumbar spine condition. The Board finds that the evidence of record is against a finding of service connection for lumbar spine disability. Initially, while service medical records show that the Veteran was seen for complaints of low back pain, there is no evidence that the Veteran was found to have a diagnosed low back disability or symptoms of a chronic condition. Furthermore, there is absolutely no medical evidence that the Veteran was evaluated for a low back condition after service until September 1980, four years after separation from service, when he was treated for back pain but medical personnel noted that X-rays indicated that alignment was within normal limits. No soft tissue abnormalities were normal. The physician noted that disc herniation per se would not be seen on a LS spine series. The impression from the report was a normal study. Additionally, the evidence does not show that any low back arthritis was shown on x-ray within one year following separation from service. 38 C.F.R. §§ 3.307, 3.309(a) (2015). Moreover, the Board notes that the only medical opinion to address the medical relationship, if any, between the Veteran's current low back disability and service weighs against the claim. The Board finds that the June 2012 negative medical opinion constitutes probative and persuasive evidence on the medical nexus question, based on review of the Veteran's documented medical history and assertions and physical examination. The examiner specifically noted that the Veteran's in-service low back injury was not a chronic condition as the spine was clinically assessed as normal on separation from service. Additionally, the examiner noted that the Veteran was diagnosed with a congenital spinal stenosis in 1995 which was as likely as not the cause of the current lumbar spine condition. The June 2012 opinion provided rationales based on an accurate discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection for a lumbar spine disability. The Board also notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA medical professional, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The only other evidence of record supporting the Veteran's claim are lay statements from himself and his family. Even if those statements could be read as claiming continuity of symptomatology since service, the VA medical opinion outweighs those lay statements as there is no indication that the Veteran or his family members possess the requisite medical knowledge or education to render a probative opinion involving medical causation between his lumbar spine disability and service. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also points out that the back disorder at issue is an insidious disease process not readily observable without diagnostic testing, and that determining the etiology of such a disorder years after service is not within the realm of lay expertise. Even if it were, the Board finds the examiner's opinion, given that the examiner clearly has more expertise, education and experience in addressing the etiology of medical conditions, outweighs that of the lay opinions. Consequently, those statements neither constitute competent medical evidence, nor constitute probative evidence in support of his claim. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for lumbar spine disability, and the claim must be denied. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinki, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a lumbar spine disability is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs