Citation Nr: 1741801	
Decision Date: 09/22/17    Archive Date: 10/02/17

DOCKET NO.  12-26 962	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

B. Isaacs, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1971 to December 1972.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In May 2016, the Veteran and his spouse testified at a Travel Board hearing.

In June 2016, the Board granted service connection for tinnitus and remanded the claim of service connection for a low back disability for further development.


FINDING OF FACT

The Veteran's low back disability did not have its onset in service and is not otherwise related.


CONCLUSION OF LAW

The criteria for service connection for a low back disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).
Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  "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"-the so-called "nexus requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  Additionally, service connection can be established by sufficient evidence of a continuity of symptomatology between current disability and military service.  38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as arthritis).

Analysis

The Veteran asserts that he has a low back condition that had its onset during service.  At the May 2016 Board hearing, he reported that while in training during service, or sometime after his service began, his back pain began and continued thereafter.  He indicated he has received continuous treatment for his back condition since service.  His spouse also indicated during the Board hearing that the Veteran's back has bothered him since service and that he experiences pain every day.

In addition, the Veteran indicated that he worked for General Motors (GM) before and after service.  He noted that when he started working at GM prior to service, he was found physically fit and when he got out of the Army and again was prepared to start working at GM, he underwent another physical.  He reported that the reentry physical included an x-ray which noted sacralization of the lower spine which caused GM to put the Veteran on permanent restrictions.  He also noted that he was told not to report to Reserve training in 1974 due to his back condition.

A July 1970 x-ray indicated there were no findings considered significant in the lumbosacral spine and there were no disturbances in alignment.  It showed the Veteran's L5 segment was set quite low between the iliac crest and presented distinct lumbar characteristics with no irritative changes.  The physician reported slight relative disc space narrowing at L5-S1, not of significance because of the many normal variations at disc height at this site, as well as normal sacroiliac joints.

The Veteran underwent a post-service January 1973 x-ray of his low back, which revealed straightening of the lumbar lordotic curve with partial symmetrical sacralization present at L5.  The physician indicated the vertebral bodies appeared intact and were in normal alignment, except for straightening of the lordotic curve.  He noted partial symmetrical sacralization of the L5, with resultant mild narrowing of the disc space at L5-S1, probably not of significance and that the remainder of the disc spaces and pedicles appeared intact.

The January 1973 x-ray and the corresponding report led to permanent restrictions for the Veteran of no lifting over 25 pounds and no bending below knee level, during his work at GM.  Further, a July 1974 military personnel record indicated to the Veteran "do not report for training," and in an April 1975 statement, the Veteran noted the permanent physical condition of his back previously excused him from training.

Thereafter, the Veteran filed his present February 2011 claim for his low back disability.  As noted, the Veteran was afforded a May 2016 Board hearing where he indicated his back disability had its onset during service and continued thereafter.  He noted he underwent surgery in 2005 to his lower back.  Additionally, a May 2016 statement was submitted from J.C., who worked with the Veteran before and after service.  He indicated that before service, the Veteran could perform any job he was trained for and after service, he had limitations and could no longer perform the same jobs.

As noted, the claim came before the Board in June 2016 and was remanded for further development, including a VA examination to determine the etiology of his back condition.  The Veteran was afforded the VA examination in October 2016 pursuant to the Board's remand.

The October 2016 VA examiner (a physician), after reviewing recent x-rays taken, diagnosed the Veteran with degenerative disc disease (DDD) and arthritis of the lumbar spine.  The examiner gave the opinion that the back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness.  She indicated the Veteran did not receive treatment for a back condition in service, including a normal September 1972 separation examination.  The examiner stated sacralization is a developmental congenital condition of the bony parts of the spine where the first sacral vertebra is fused to the fifth lumbar vertebra.  She noted this condition would have been present prior to service, however, it was not seen on x-rays in 1970.  The examiner further indicated in 1973, the radiologist read the x-rays as having sacralization; however, current x-rays do not demonstrate this condition.

The October 2016 examiner went on to state that there was no treatment for a back condition immediately after service and the Veteran was able to work and also perform activities such as working on cars and woodworking.  He noted the first evidence of a back condition is from the Veteran's reported back surgery in 2005, more than 30 years after service.  The examiner noted the Veteran's lumbar DDD is not unusual for his age or since he is overweight.

The Board observes there is a question as to whether the Veteran had a back disability which preexisted service, namely the congenital condition sacralization which was noted on the January 1973 x-ray.  However, no disability was noted upon his entry to service, including the October 1970 entrance examination.  Additionally, the October 2016 VA examiner indicated that October 2016 x-rays show no sacralization present and there is no medical evidence that the Veteran's current back condition clearly and unmistakably preexisted service.  He reported the prior July 1970 x-ray was not significant for DDD and arthritis, and the Veteran's earliest reported finding of DDD was more than 30 years following service.  He reiterated the Veteran's back condition would be common based on his age.

Lastly, the examiner indicated the Veteran's current arthritis less likely than not manifested within one year of his separation from service.  He stated there is no medical evidence supporting that the Veteran had arthritis of the spine within one year of service.  He noted the 1973 x-ray did not show arthritis and there is no evidence of arthritis demonstrated by the record until 2016, approximately 44 years after service.

Based on the evidence overall, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for a back disability.  The most probative medical evidence supports his current back arthritis did not have its onset during service and is not otherwise related.

In reaching such conclusion, the Board accords great probative weight to the October 2016 VA examiner's opinion.  The opinion is highly persuasive as it is predicated on a review of the record, to include prior x-rays of the Veteran's back from before and after service, his contentions, as well as a current examination with supporting diagnostic testing.  The opinion proffered considered all of the pertinent evidence of record, and provided a complete rationale, relying on and citing to the records reviewed.  Moreover, the examiner offered clear conclusions with supporting data, as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  The examiner's opinion supports that the Veteran's DDD with arthritis is not related to service, that there was not a back disorder which preexisted service and that the documented arthritis of the lumbar spine did not have its onset within one year of separation from service.

The Board acknowledges that the Veteran, as well as his spouse, have reported that the Veteran's back condition had its onset in service.  However, the Veteran is a lay person and so is his spouse.  The Board acknowledges that lay persons are competent to report objective signs of illness, such as back pain, and therefore, the Veteran is competent to report that his back pain began in service.  However, there is no indication that he has specialized training in diagnosing or determining the etiology of spine disorders, which in this case is a complex medical question.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Physical examinations, x-ray findings, and other specific findings are needed to properly assess lumbar DDD, and the etiology of such requires the opinion of a medical professional.  Thus, the conclusions of the October 2016 physician are more probative than statements offered by the Veteran and his spouse.

With regard to a potential continuity of symptomatology, the Board finds it is not established so as to presume a nexus for a chronic disease under 38 C.F.R. § 3.303(b) for arthritis.  First, there was a normal separation examination in September 1972, which weighs against continuity.  Further, the record supports the Veteran did not receive treatment for more than 30 years following service, despite undergoing an x-ray to his back in January 1973.  As noted, the October 2016 VA examiner indicated arthritis was not seen until 2016.  Furthermore, there is no medical evidence of record supporting that the Veteran's current lumbar arthritis is related to service.  Consequently, presumptive service connection for lumbar arthritis, to include on the basis of a continuity of symptomatology, is not warranted.

The Board points out that, to the extent sacralization potentially is a condition rather than a symptom, the evidence does not show that the Veteran has sacralization.  While the 1973 x-ray showed this, it was not seen in 1970 and not seen now on x-ray.  Furthermore, a presumption of soundness analysis is not necessary for this seemingly congenital defect because sacralization did not manifest during service.

In consideration of this evidence, the Board finds that the Veteran's lumbar DDD with arthritis did not have its onset during and was not otherwise related to service.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability.  As such, that doctrine is not applicable in the instant appeal, and service connection is not warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


ORDER

Service connection for a low back disability is denied.




____________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs