Citation Nr: 1745533 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 14-20 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1957 to January 1958. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Board reopened the claim of entitlement to service connection for a low back disability and remanded the claim for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). FINDING OF FACT The Veteran's low back disability developed many years after his separation from service and is not related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his current low back disability is related to his active service, to include his December 1957 in-service low back injury. The Veteran asserts that he was placed on leave at his job in 1968 due to back pain. He also indicated that he lost various jobs from 1958 to 1974 due to the back injury he incurred in service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service treatment records show the Veteran was first seen by a medical officer in December 1957 for back pain. He was treated with infrared heat on several occasions in the same month. The records also document that later in the month the Veteran fell overboard while walking in his sleep but that an examination did not reveal internal or external injuries. The Veteran received an injection of 15cc Procaine hydrochloride for back pain. Later in the month, he was transferred to the U.S. Naval Hospital in San Diego (Balboa) with a diagnosis of somnambulism. The Veteran's medical summary dated December 1957 notes that he had unremarkable physical, neurological, and laboratory examinations on admission. Post-service treatment records associated with the Veteran's 1972 workers compensation claim show that during a June 1974 neurosurgical consultation, he stated that he had a job-related injury in February 1968 that resolved after several weeks, and he returned to work in October 1968, when he had another job-related injury. He further reported that after his October 1968 injury he received chiropractic treatment and returned to work after 1.5 years but had no further low back pain until October 1972 when he incurred another job-related injury, which was diagnosed as a sacral strain. The June 1974 clinician indicated he had findings suggestive of a protruded lumbar intervertebral disc at L5-S1. Records also show that from September 1973 to August 1974 the Veteran's chiropractor treated him for moderate lumbopelvic spinal strain with extension neuralgia into the left leg. In August 1974, he reported low back pain and myelographic evidence indicated that he had bilateral defects at the lumbosacral and L4-L5 levels. He was diagnosed with a herniated nucleus pulposus with S1 nerve root irritation and underwent a laminectomy and disc excision for bulging disc at the right lumbosacral level. Records from August 1974 to September 1975 indicate he recovered well with midline lumbosacral aching and stiffness and transient paresthesias in his right leg. A December 1979 X-ray of the lumbar spine showed retrolisthesis at L5 over S1, degenerative disc disease at L5-S1, and slight degenerative marginal spurring at L5. A December 1980 X-ray of the lumbar spine revealed moderate degenerative change at the lumbosacral interspace. Post-service treatment records also document complaints of chronic low back pain from 1978 to 1986. VA treatment records from October 2012 to March 2017 document a January 2014 X-ray of the lumbar spine that showed mild anterior wedging of the L5 vertebral body, mild to moderate degenerative disc disease throughout the lumbar spine most prominent at L5-S1, and moderate anterior bridging osteophytes at L1-L2 and L3-L4. The January 2014 X-ray of the thoracic spine also showed mild degenerative disc disease throughout the thoracic spine. Abdominal CT scans from January 2013 to November 2016 also revealed degenerative changes of the spine. The Veteran was afforded a VA examination in November 2013. An X-ray of the lumbar spine performed during the VA examination yielded evidence of a mild compression fracture of L5 and degenerative disc disease at L5-S1. The November 2013 VA examiner diagnosed the Veteran with thoracolumbar degenerative joint disease, status-post lumbar surgery with scar, and lumbar compression fracture. The examiner opined that the Veteran's low back condition was less likely than not related to service. The examiner explained that service treatment records did not contain any complaints or findings related to the back. The examiner further reasoned that it would be purely speculative to suggest that the Veteran would have acquired such a serious back condition requiring surgery in 1974, 16 years after discharge, without some documentation during military service or immediately after discharge, of some abnormal physical findings or clinical notes of a back condition. However, in January 2017, the Board found this opinion inadequate, as it did not address the entries of in-service treatment for his low back in December 1957. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Pursuant to the January 2017 Board remand, the Veteran was afforded another VA examination in March 2017. The examiner diagnosed the Veteran with degenerative disc and degenerative joint disease of the lumbar spine. The March 2017 examiner opined that the Veteran's current low back disability is less likely than not related to his in-service back condition. He explained that service treatment records are silent for a back injury except for a letter dated approximately 8 months after separation stating that in December 1957 he was treated for a lower back condition on board the ship. He also noted that the available service treatment records do not mention a back condition and neither the transfer summary nor the discharge summary at Balboa Naval Hospital mentioned a back condition. The examiner further reasoned that post-service treatment records are also silent for a back condition until approximately 1968 when the Veteran suffered a job-related injury. The examiner explained that the Veteran's current back condition is an acute injury related to his employment and not related to his active service. The examiner noted that there was no objective evidence of degeneration of the Veteran's lower back in service. The examiner further concluded that it is more likely than not that the Veteran sustained an acute and transitory lumbar sacral strain in service which resolved without residuals and with conservative care and that there is no scientific basis to associate a lumbar sacral strain with subsequent degenerative disc disease. After review of the record, the Board finds that service connection for a low back disability is not warranted. Turning first to the Veteran's statements, the Board acknowledges that laypersons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran may be competent to report the manifestation of symptoms of his low back disability, he is not competent to provide medical opinions regarding the causes or aggravating factors of that condition, particularly insofar as such diagnoses as fractures and degenerative disc disease are concerned. As the Veteran has not shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) opinions on medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998). Hence, his lay assertions are of minimal probative value. In addressing the competent evidence of record, the Board finds that the negative opinion of the March 2017 VA examiner, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a detailed rationale for the conclusion reached. His conclusion is supported by the medical evidence of record, which includes service treatment records noting no objective findings to support the Veteran's complaints of back pain and no evidence of external or internal injuries after his fall overboard; post-service treatment records documenting no treatment for back pain until after his work-related injuries in 1968 and 1972; and findings that the Veteran's in-service back pain was more likely than not a lumbar sacral strain, and medical literature does not support an association of lumbar sacral strain with subsequent degenerative disc disease. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no competent medical opinion of record to the contrary. The Board also notes that the deficiencies present in the November 2013 examination, which the Board has found to be of minimal probative value, were not present in the report of this most recent examination. In addition, there is no evidence of degenerative joint disease or any organic neurological disorder in service or within one year thereafter. The provisions of 38 C.F.R. § 3.303(b) and 38 C.F.R. § 3.307 with regard to chronic diseases are therefore not for application. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The Board is grateful to the Veteran for his honorable service, and he may at any time reapply to reopen this claim with new and material evidence. ORDER Service connection for a low back disability is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs