Citation Nr: 1753377 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-07 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from January 1963 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction was subsequently transferred to the RO in Honolulu, Hawaii. The Board notes that in his VA Form 9 (Appeal to the Board of Veteran's Appeals), the Veteran requested a Board hearing, at the RO. A hearing was scheduled for September 24, 2015. However, in correspondence received on September 23, 2015, the Veteran's representative reported that the Veteran would be unable to attend his scheduled hearing. The Veteran did not request postponement or rescheduling at that time, and has not since then requested that another hearing be scheduled. Accordingly, the Board finds no further action necessary with regard to the Veteran's original request and will proceed with its adjudication of the appeal. The instant matter was previously before the Board December 2015, at which time the Board reopened a previously and finally denied claim for service connection for a low back disability and remanded the underlying claim for further development. Upon completion of that development, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) in February 2016 where it denied the Veteran's claim for service connection for a low back disability. The matter was thereafter returned to the Board for further appellate review. Lastly, the Board notes that in his VA Form 9, it appeared that the Veteran was claiming service connection for neck and shoulder disabilities. The RO acknowledged this in a May 2015 deferred rating decision, wherein it was also indicated that the Veteran was to be notified that those issues were not on appeal and that he should file a formal claim and submit new and material evidence. It does not appear that the Veteran was ever so informed and these issues have not yet been adjudicated by the AOJ. They are referred to the AOJ for appropriate action, to include providing the Veteran with the appropriate forms. See 38 C.F.R. §§ 19.9(b) (providing for referral to AOJ of issues not yet adjudicated); 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits) (2017). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a low back disability that is the result of a disease or injury incurred in active duty service; arthritis of the lumbar spine was not manifested within a year of separation from service. CONCLUSION OF LAW The Veteran does not have a low back disability, to include degenerative disc disease, that is the result of disease or injury incurred in or aggravated by active military service, nor may spinal arthritis be presumed to have been incurred in or aggravated by active military service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2016). The VCAA applies to the instant claim. In the instant case, neither the Veteran nor his representative has raised any 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. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may 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). A review of the Veteran's service treatment records (STRs) fail to reveal any complaints or treatment related to the low back, or evidence of musculoskeletal injury. At the time of his October 1971 separation examination, the Veteran's spine was clinically evaluated as normal and the Veteran denied back trouble of any kind of the accompanying report of medical history. In February 1988, the Veteran filed a claim for VA disability compensation, seeking service connection for, among other things, a low back injury. The Veteran reported having received treatment for such from 1966 to 1969; no further details regarding the nature of the claimed injury or resulting disability were given. When the Veteran again sought service connection for a low back injury in August 2010, he did not indicate when the injury occurred. Private medical records submitted in support of the claim show that the Veteran was being treated for lumbago (low back pain). The treatment records contain no indication as to the etiology of the Veteran's low back pain. In disagreeing with the RO's August 2012 decision declining to reopen the previously denied claim of service connection for a low back disability, the Veteran reported that he had in service been thrown off a truck, landing on his face and shoulder. He indicated his pain had worsened as he had grown older. VA treatment records also notes the Veteran's complains of low back pain, as well as a diagnosis of degenerative disc disease. The Veteran was then provided with a VA examination in January 2016 at which time the Veteran reported that he was thrown from a truck while in service, landing on his face and shoulder. Regarding the claimed back disability, the Veteran indicated that "somebody from VA made this claim for [him]" and stated that he did not know why he was being examined, as he is already considered to be 100 percent disabled. As to his current back symptomatology, the Veteran reported pain every day. Range-of-motion testing revealed limitation of flexion to 65 degrees, as well as pain on flexion. Regarding the likelihood that the Veteran's current back disability was related to service, the VA examiner opined that it is less likely than not that the Veteran's lumbago/degenerative arthritis of the lumbar spine is attributable to service. As rationale for that opinion, the examiner pointed out that the Veteran's STRs were silent for any complaints or treatment related to the back, that the Veteran had reported landing on his shoulder and face when thrown from a truck in service, and that the first documented complaints of back pain did not appear until 2009, at which time the Veteran was 65 years old and of an age when a majority of people would have developed degenerative disc disease. Upon review of the evidence of record and in consideration of the VA examiner's negative nexus opinion, the Board finds that an award of service connection for a low back disability, to include degenerative changes of the lumbar spine, is not warranted. At the outset, the Board points out that to the extent that the VA examiner's opinion is lacking somewhat in rationale, there is no requirement imposed on a medical examiner to provide detailed reasons for an opinion. See Addison v. Brown, 6 Vet. App. 405, 407 (1994). Rather, an examiner is required only to consider all of the relevant evidence before forming an opinion and support his or her opinion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (describing adequacy of medical examinations). In the instant case, there is no indication that the VA examiner failed to consider any piece of relevant evidence before providing the requested opinion. Although the examiner did not specifically discuss the Veteran's alleged in-service injury or whether such injury could lead the Veteran's current problems, the examiner took note of it, as evidenced by the medical history section of the report. Further, the examiner is correct that the Veteran's STRs do not contain any evidence of injury to the low back and show that at the time of his separation examination, he was clinically evaluated as normal and there is no indication of any back symptomatology. The Board also finds no reason to discount the medical opinion based on the clinician's expertise and qualifications as a medical professional. Moreover, the Veteran has submitted no evidence, other than his own lay beliefs, that his back pain or currently diagnosed degenerative disc disease of the lumbar spine is attributable to his alleged in-service injury. Further, the Veteran himself suggests that he did not intent to claim service connection for a low back disability, asserting that "somebody from VA made this claim for [him]." Thus, given the absence of contrary medical evidence in this case, the Board need not weigh the VA examiner's opinion against other evidence. Indeed, there is no evidence, other than the Veteran's own belief, to suggest that his lumbar spine disability is attributable to service. Although the Veteran may believe such to be the case, the etiology of dysfunctions and disorders is generally a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such an etiological conclusion, especially in light of the VA examiner's conclusion to the contrary. See Jandreau, supra. In this regard, the Board notes that, to the extent that the Veteran has opined that his current back disability disability is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson, supra; Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, any lay statements proffered by the Veteran as to the etiology of his current low back disability is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007) (lay person competent to identify varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran's statements asserting a medical nexus between his current low back disability and service are therefore not competent. The above evidence also reflects that a chronic disease, i.e., arthritis, did not manifest in service or within the one year presumptive period, and was not noted in service. The provisions of 38 C.F.R. §§ 3.303(b) and 3.307, relating to chronicity and continuity of symptomatology, are therefore not for application. For the foregoing reasons, the weight of the evidence is against a finding of service connection for 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 for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs