Citation Nr: 1752322 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-35 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a back disability, to include as secondary to the Veteran's service-connected left shoulder and neck disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 and February 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In January 2015 the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference. A transcript of the hearing is associated with the record. The Board remanded the claims to the agency of original jurisdiction (AOJ) for additional development in June 2015. FINDINGS OF FACT 1. The most probative evidence of record is against a finding that the Veteran's back disability is causally related to, or aggravated by, active service. 2. The Veteran's back disability was not caused or aggravated by his service-connected left shoulder or service-connected neck disabilities. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107, 7104 (West 2014); 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist With respect to the Veteran's claim herein, 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 (2017). VA's duty to notify was satisfied by letters dated in a November 2011 letter. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records, and VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded adequate VA examinations in March 2011, August 2016 and November 2016 wherein the examiners took into account the Veteran's statements and treatment records and provided adequate opinions regarding the etiology of the Veteran's back disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also finds that there has been substantial compliance with its June 2015 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, outstanding VA treatment records were obtained and associated with the evidence of record before the Board, the Veteran was afforded an adequate November 2016 VA examination as described above, and his claim was readjudicated by the RO in a November Supplemental Statement of the Case. Legal Criteria Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310 (a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Analysis The Veteran asserts that he has a low back condition as a result of his service-connected left shoulder and cervical spine (neck) disabilities. Specifically, he contends that he sustained a left shoulder and neck injury in service when he was hit with an oil probe on the left side of the neck, and further asserts that his current low back disability is a progression of what resulted from those in service injuries. See, e.g., Hearing Transcript, dated in January 2015. A service treatment record (STR) in 1973 showed that the Veteran complained of back pain. There was no diagnosis of a disabling back condition and no clinical finding of a back disability. Separation examination from August 1975 does not show any report of a back problem by the Veteran or the examiner. Reenlistment examination in August 1978 does not reference a back problem. Treatment record indicates that the Veteran was diagnosed with thoracic back pain and dorsal muscle strain in 1975. See March 2011 VA Examination Report. Furthermore, treatment records received from the Dorn VAMC in March 2011 indicate that the Veteran reported having low back pain frequently, but stated he feels ice packs are fairly good as managing his pain. He also reported he has to bend over a lot when he is working and feels "that this is contributing to low back pain." MRI from 20007 reveals disc bulging with stenosis at several levels of the lumbar spine. An October 2010 VA treatment record showed that the Veteran was treated for lumbar paraspinous muscle tenderness. The diagnosis was lumbar sprain. He was prescribed medication, and taught relaxation techniques to minimize pain. See VA Medical treatment record, received in November 2010. In March 2011, the Veteran underwent a VA examination for a low back condition. On examination he reported pain at the end of range of motion (ROM), especially with flexion, lateral flexion, and rotation. He reported pain mostly in the lateral paraspinal musculature on the left side. He had no spasm. He had some tenderness over his left paraspinal musculature. He had negative straight leg raise test bilaterally. Normal motor deep tendon reflexes, normal sensation, and a normal gait. X-ray of his lumbosacral was within normal limits and showed no evidence of spondylolisthesis. The examiner opined that there is no evidence of any specific incident or pathology that was caused by the military service that would cause his degenerative disk disease. The examiner further opined that although the specific cause of lumbar disk disease is unknown, several theories cite traumatically-induced acute annular tearing of the inciting pathological event, notably, "other theories suggest that degeneration of the lumbar disk is the natural part of aging." In August 2016, the Veteran underwent another VA examination for his low back condition. A diagnosis of intervertebral disc syndrome (IVDS) was noted. No IVDS of the thoracolumbar spine noted on examination. The Veteran reported low back pain of mild degrees. No flare ups of the thoracolumbar spine were recorded. Initial ROM is normal. No pain on examination. No objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was reportedly able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions. No guarding and muscle spasm. No muscle atrophy. No radicular pain or any other signs or symptoms due to radiculopathy. No ankylosis of the spine. No other neurologic abnormalities or findings related to a thoracolumbar spine condition. Imaging of the thoracolumbar spine shows no arthritis. The VA examiner opined that the Veteran's current back symptoms are less likely than not related to his time in service. As a rationale, the examiner stated that the STRs document thoracic, i.e., upper back pain, and noted that the records are silent regarding lumbar spine symptoms or evaluation and treatment. In addition, the examiner opined that there is no relationship between the Veteran's current lumbar spine symptoms and his service-connected left shoulder or cervical spine symptoms. Notably, he states, "there issues are separate, primary conditions and would not be related pathophysiologically." The November 2016 examiner reviewed the entire records. Like the previous examinations, no flare ups of the thoracolumbar spine were reported. ROM was normal. No objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. No guarding and muscle spasm. Straight leg raising test was negative bilaterally. No radicular pain or IVDS of the thoracolumbar spine noted on examination any other signs or symptoms due to radiculopathy. No ankylosis of the spine. The November 2016 examiner opined that the back condition is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner also opined that the back condition is less likely than not (less than 50% probability) proximately due to or the result of the service-connected left shoulder and cervical spine disabilities. The question before the Board is whether the Veteran's current low back condition was incurred in service or caused by, or aggravated by his service-connected disabilities. The Board notes that while the STRs indicates complaint of back pain, there is no complaint of a disabling back problem in service and no evidence of a chronic problem with the back during service. Furthermore, the separation examination in August 1975 does not show any report of a back problem by either the Veteran or his examiner. The STRs and separation statements do not indicate complaints of low back pain. Moreover, there was no indication of a back problem on reenlistment examination in August 1978. The Veteran testified at his Board hearing that he received VA treatment from the Durham VAMC from August 1975 through August 1999. However, upon request to provide said treatment record, the Durham VAMC responded that said records do not exist. See Durham VAMC response, received in December 2015. The Board has also considered the Veteran's lay statements and does not dispute his reports of a low back pain. Although the Veteran is competent to describe observable symptoms of back pain, he is not competent to opine as to the etiology of such pain, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau, 492 F.3d 1372; Barr 21 Vet. App. 303, 309. As such, his lay opinion that his low back condition was caused, or aggravated by service-connected disabilities does not constitute competent medical evidence and lacks probative value. The Board assigns greater probative value to the medical evidence of record, particularly the VA examinations that consistently show that the Veteran's low back condition is not due to his military service or his service-connected left shoulder or cervical spine disabilities. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim seeking service connection for a low back disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a back disability, to include as secondary to the Veteran's service-connected left shoulder and neck disabilities is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs