Citation Nr: 1752949 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-03 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease (DDD). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from September 1977 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appellant filed a timely Notice of Disagreement (NOD), received in August 2013. A Statement of the Case (SOC) was issued in December 2013. A timely VA Form 9 was received in February 2014. FINDING OF FACT A chronic lumbar spine disability was not present in service or manifest to a compensable degree within one year of service separation, and the most probative evidence establishes that the appellant's current lumbar spine disability is not causally related to his active service or any incident therein. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1131, 1133, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The appellant's former representative argued that the February 2013 VA examination report was inadequate because the examiner did not take the appellant's lay statements and buddy statements "into proper consideration." However, the Board has reviewed the medical opinion and finds that the VA examiner did, in fact, consider the lay contentions regarding the occurrence of a back injury during a football game. In the medical history section of the report, the VA examiner recites the appellant's report of injuring his back while playing football in 1979. The VA examiner considered such lay reports of a back injury while on active duty in providing the negative nexus opinion. Thus, the Board finds that the VA medical opinion of record is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Neither the appellant nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Applicable Law A. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. B. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the "active military, naval, or air service." 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). III. Factual Background The appellant contends that he injured his lumbar spine during a football game while on active duty. Service treatment records are negative for complaints of, or treatment for, lumbar spine problems. An April 1979 clinical note from the Barbers Point Branch Clinic states that the appellant complained of a sore neck for three days after falling several times while water skiing. Range of motion of the neck was full. There were no significant abnormal findings. The assessment was possible mild cervical strain. No complaints or abnormalities pertaining to the low back were recorded. A November 1979 clinical note states that the appellant was seen in the emergency room at the Barbers Point Branch Clinic for complaints of right hip pain after being tackled during a football game. Tenderness was observed and swelling was absent. Again, no complaints or abnormalities pertaining to the lumbar spine were noted. The appellant's June 1980 separation examination report was essentially normal. The appellant's spine and other musculoskeletal systems were examined and determined to be normal. The appellant reported that "my health is fair." He was found to be qualified for separation. In pertinent part, the post-service clinical evidence includes a May 2002 clinical note which states that mild lumbar levoscoliosis was observed. Lumbar vertebrae were normal in height and disc spaces were preserved. There was minimal end plate spurring at L2-L3. There was incomplete fusion (spina bifida occulta) over the posterior elements of S1. A January 2010 clinical note from Community Radiology states that the appellant complained of low back pain radiating to the left leg. The appellant reported that he sustained an injury due to lifting in 1992. A January 2010 letter from Dr. R.V.H. states that, three weeks prior, while the appellant was working, he got out of his truck to unload it, attempted to straighten an item which had fallen, and in doing so injured his back. Private medical records indicate that Dr. R.V.H. performed a lumbar laminectomy with discectomy in January 2010. A September 2012 clinical note from Dr. T.R. states that the appellant had undergone three back surgeries, most recently in June 2012. Buddy statements from three fellow service members were received in December 2012. S.R.B. reports that he served with the appellant but does not discuss the appellant's claimed back injury or the circumstances surrounding such injury. P.B.S. reports that he recalls helping to transport the appellant to the dispensary for medical treatment after he was injured during a unit flag football game. J.N. reports that the appellant injured his back during the final game of a flag football tournament and went to the hospital for treatment. In a statement received in December 2012, the appellant reports that he was injured during a football game in August 1980 and was taken to the dispensary, where he was treated for a deep bruise on his back and side. He stated that he was discharged later that month, one month early, due to having unused leave. He conceded that his back "did improve somewhat after [he] got home." He reported that he began work thereafter and has had problems with his back ever since, to the point that it eventually gave out while on the job. The appellant was afforded a VA examination for his back in February 2013. The claims file was reviewed. The appellant was diagnosed with DDD of the lumbosacral spine. This had been first diagnosed in 2010. The appellant explained that he injured his back in 1979 while playing football on active duty. He went to the dispensary, where he was treated for a deep bruise. The appellant could not remember what treatment he received. After the appellant separated from service in September 1980, he worked as a route salesman for 34 years, which included truck driving for 12 years. The appellant explained that his job was "heavy duty," including lifting, carrying, and moving heavy items. As he worked in this field, he saw doctors for his back on numerous occasions and underwent multiple surgeries. The VA examiner opined that it was less likely than not that the appellant's current lumbar spine disability was caused by or incurred during his active service. The VA examiner observed that the only spine-related documentation in his service treatment records was an April 1979 note which recorded complaints of a sore neck for three days after falling several times while skiing. Physical examination at that time revealed full range of motion and no abnormal findings. Service treatment records were negative for low back observations or complaints. The appellant had no tag or flag for back conditions while in service. His separation examination was negative for any low back observations or complaints. The examiner opined that it was more likely than not that the appellant's lumbar spine DDD was due to his civilian heavy duty occupation for 34 years and as part of generalized degeneration due to age. In his August 2013 NOD, the appellant explained that he did not injure his back while skiing, but during a football game. He has had back problems since such injury. He reported that he primarily self-medicated such pain, but had to miss work occasionally and go to the emergency room due to his pain. However, he was able to work for 34 years despite this constant pain. In his January 2014 substantive appeal, the appellant explained that the sore neck noted in his service treatment records from skiing was simply soreness. He reiterated that his back injury occurred during a football game in which he violently collided with another player and that he has experienced back problems since this incident. A March 2014 statement from the appellant's former representative, the American Legion, states that the appellant does not remember what treatment he received for his football injury. IV. Analysis Upon weighing the evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for a lumbar spine disability. The appellant contends that his low back disability is due to an injury he sustained while playing football. The appellant's service treatment records document a November 1979 episode in which he was seen in the emergency room after being tackled during a football game. He has also submitted statements delineating an August 1980 injury while playing flag football in which he sustained a deep bruise on his back and side. That an injury occurred during active service, however, is not enough to establish service connection. Rather, there must be chronic disability resulting from that injury. In this case, the appellant's service treatment records are entirely negative for complaints or findings of a chronic lumbar spine disability. In fact, at the time of his separation from service in September 1980, the appellant's spine was examined and determined to be normal. The post-service clinical evidence similarly contains no indiction of arthritis in the first post-service year. Although the evidence establishes that a chronic low back disability was not present during the appellant's active service or manifest to a compensable degree within one year of separation, service connection may nonetheless 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). In this case, however, the record weighs against finding that the appellant's current low back disability is causally related to his active service. As set forth above, in February 2013, a VA examiner examined the appellant and reviewed the record and concluded that it was less likely than not that the appellant's current low back disability was causally related to the in-service football injury. The VA examiner's opinion is well-reasoned and based upon an examination of the appellant and a review of the claims file. Thus, it is entitled to great probative weight. There is no competent medical opinion of record which is in favor of the appellant's current back disability being related to his active service. The Board has considered the appellant's lay history of symptomatology. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant, however, is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. The Board finds the VA examination report to be of greater probative weight than the appellant's lay assertions in determining the etiology of his current low back disability. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 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 lumbar spine disability is denied. ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs