Citation Nr: 1730698 Decision Date: 08/01/17 Archive Date: 08/11/17 DOCKET NO. 12-30 950A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for lumbar spine degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sean Raymond, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to December 1975. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an April 2010 rating decision of the VA Regional Office (RO) in Baltimore, Maryland. In September 2016, the Board remanded this case for further development. At the Veteran's request, the RO scheduled the Veteran for a hearing before a Veterans Law Judge at the Central Office in June 2016. The RO mailed notice of the hearing date, time, and location to the Veteran's latest address of record in May 2016. This notice was not returned as undeliverable. The Veteran did not appear for the scheduled hearing. Neither the Veteran nor his representative has stated cause for the Veteran's failure to appear, nor have they asked to reschedule the hearing. Accordingly, the Veteran's request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.703(d) (2016). FINDING OF FACT The Veteran's lumbar spine degenerative joint disease did not manifest in service, within one year of service, and is otherwise not related to service. CONCLUSION OF LAW The criteria for service connection for lumbar spine degenerative joint disease have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, neither the Veteran nor the representative has alleged notice or due process deficiencies since return of this case to the Board. II. Legal Criteria Establishing direct service connection generally requires (1) a current disability; (2) an in-service occurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a). When a chronic condition is present, a claimant may establish the second and third elements by demonstrating continuity of symptoms. 38 C.F.R. § 3.303(b). Certain chronic diseases may be presumptively service connected if they manifest to a compensable degree within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any injury or disease diagnosed after discharge when the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed the record in conjunction with this case. Although the Board must provide reasons and bases supporting this decision, the Board need not discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis will focus specifically on what the evidence shows, or fails to show. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Furthermore, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert, 1 Vet. App. at 49. Lay evidence, if competent and credible, may establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). III. Analysis The Veteran contends that his lumbar spine degenerative joint disease (DJD) was incurred in or caused by service. Service treatment records (STRs) note treatment for back pain due to playing basketball in October 1974 and for back pain after heavy lifting in February 1975. STRs indicate routine treatment such as heating pads and Tylenol. The Veteran's exit examination notes the spine was normal. The Veteran indicated he was in good health in his separation examination. Post-service VA treatment records reflect the Veteran was treated for back pain in December 2009 and diagnosed with degenerative joint disease. A September 2016 Board remand thus directed to provide the Veteran with a VA examination to determine the etiology of the Veteran's disability. A February 2017 VA examiner opined that the Veteran's lumbar spine DJD was less likely than not incurred in or caused by service. The examiner's rationale noted over 30 years between service and current complaints and treatments for lower back pain. The Veteran contends that he suffered from his current disability and self-medicated for an unspecified period prior to seeking treatment in 2006. See May 2017 statement. The Veteran's representative contends the Board should assume the Veteran suffered from the time of his in-service injury until the present. See July 2017 appellate brief. The thrust of both contentions is that the Veteran long-suffered, self-medicated, and chose not to seek treatment for his back for one reason or another. The evidence of record does not support either contention. Treatment records from 2003 indicate the Veteran's willingness to seek treatment for numerous medical complaints unrelated to his back. October 2016 CAPRI (swollen left hand, numbness in fingers of right hand, right ankle sprain, leg cramps, and right hip pain). In a January 2006 VA treatment record, the Veteran reported he had pain in his right hip and cramps in the right hamstrings for the past three years. The examiner noted that the Veteran's past medical history was, "Hypertension, Sinus problems, Right ankle fracture." Thus, the Veteran did not report ongoing back pain at that time. An examination at that time showed that the Veteran's "legs and back [were] unremarkable." Id. at 1241. The Veteran denied back pain in June 2008 while seeking treatment for another medical condition. Id. at 1049. The December 2009 VA treatment record that diagnosed DJD indicates the Veteran reported a four to five year history of lower back pain. Hence, the earliest onset of the Veteran's disability that could be construed based on objective, contemporaneous medical evidence would be in 2005-approximately 30 years after service. These circumstances corroborate the findings of the February 2017 VA examination. The Board acknowledges the Veteran's contentions concerning the origin of his lumbar spine DJD, and that he is competent to allege to the symptoms of such. Nevertheless, the Veteran cannot proffer competent medical evidence as to the nature and etiology of DJD. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Considering the competent medical opinion against a nexus between the Veteran's disability and service, as well as medical documentation that contradicts the Veteran's contentions that he experienced ongoing symptomatology since service, the Board must find that the probative evidence preponderates against the Veteran's claim on a direct basis. Additionally, service connection is unavailable on a presumptive basis for chronic diseases. While DJD is a chronic disease for VA purposes, lumbar spine DJD was not diagnosed in service, within one year of service, and the record as discussed above does not demonstrate continuity of symptomatology. 38 C.F.R. §§ 3.303, 3.307, 3.309. In light of the foregoing, the Board finds that the probative evidence of record preponderates against the Veteran's claim for service connection for his lumbar spine DJD. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for lumbar spine degenerative joint disease is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs