Citation Nr: 1754561 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 15-45 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a thoracolumbar spine disability, to include degenerative disc disease, L4-L5, L5-S1. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Alexander Panio, Counsel INTRODUCTION The Veteran served on active duty for training in the Army National Guard from July 1999 to December 1999 and active duty in the United States Army from May 2000 to January 2001 and December 2006 to August 2007, including combat service in the Southwest Asia Theater of Operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's degenerative disc disease was not incurred during active duty and is not otherwise related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a thoracolumbar spine disability are not met. 38 U.S.C. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has been diagnosed with degenerative disc disease of L4-L5, L5-S1., and maintains that this condition is the result of his active duty service in Iraq. Specifically, contends that waking up one morning while on convoy duty he could hardly move. He underwent physical therapy overseas and chiropractic care upon return to the United States. He reported the condition resolved until 2014, when he began to experience pain and a reduction in motion. See December 2012 statement. Alternatively the Veteran maintains that he has had flaring issues periodically since the original incident, which have worsened and are now chronic in nature. See September 2017 Informal Hearing Presentation. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service treatment records show the Veteran reported tingling in his left leg on March 29, 2007, and was initially assessed with recurrent sciatica. Over the next several days he also complained of low back discomfort and was assessed with paresthesia of the leg and lumbago of the back. Service treatment records show continuing physical therapy for a backache through July 2007, when the condition was noted to be resolving. Following the Veteran's return from overseas he underwent a lumbar spine MRI in September 2007 that showed his discs to be normal in height and signal intensity; with no focal disc herniation. The MRI revealed no significant findings, no central canal or foraminal stenosis, only a pars interarticularis defect at L4 with no associated spondylolisthesis. The examiner noted on the Veteran's November 2008 report of medical history that the Veteran experienced low back pain from April to July 2007 and that there had been "no problems since July 2007." A contemporaneous orthopedic consultation noted that upon examination the spine was normal, with normal range of motion and negative straight leg raising tests, and that the Veteran's back pain was no trouble. X-rays taken at the time showed a normal lumbar spine with spina bifida oculta at S1. In December 2009, the Veteran reported having low back pain for two weeks. February 2014 VA treatment records show the Veteran suffered a work injury two days prior and was experiencing back pain that he described as similar to past episodes. In October 2014 an MRI showed the Veteran to have mild degenerative disc disease. In November 2014, about 2 weeks after starting a new job as a heavy mechanic, the Veteran reported having chronic back pain since 2006 or 2007. In September 2015, following an examination of the Veteran, a VA physician opined that the Veteran's current degenerative disc disease was less likely than not related to his in-service back pain. The examiner explained that the back issues experienced on active duty in 2007 were clearly treated and resolved shortly after demobilization without further sequelae. The examiner highlighted that both the Veteran and an orthopedic examiner indicated that there were no back issues in 2008. The examiner notes that the Veteran suffered a work injury following separation from service in 2014 and that x-ray and MRI studies prior to 2014 are silent for significant findings. The examiner concluded that there is no nexus between the Veteran's current back condition and service based on available records. The Veteran was noted to have minor lumbar disease manifesting seven years after service resulting from documented after-service events and the natural progression of the disease. The Board finds, based on the evidence of record, that the criteria for service connection for the Veteran's degenerative disc disease have not been met. While there is some confusion as to whether the Veteran reported experiencing back problems prior to his deployment in 2006-2007, the issue is irrelevant as the Veteran is considered sound at entrance. While the Veteran was treated for back pain during service, there was no diagnosis or treatment for any low back disc problems. MRI and x-rays taken following the Veteran's return from overseas deployment showed normal lumbar discs and repeated examinations of the Veteran's low back did not detect or diagnose degenerative disc disease until 2014, over seven years following his in-service injury and following at least one injury while working as a mechanic. Buczynski v. Shinseki, 24 Vet. App. 221 (2011) (lack of a notation of a condition where it would be expected, like during treatment or especially upon examination, suggests its absence). The September 2015 VA examiner concludes that the Veteran's condition is not related to his in-service back pain, and the Board finds this to be the most probative evidence of record concerning a possible nexus. The examiner was fully informed of the pertinent factual premises of the case as a result of an examination and a review of the claims file and the opinion was fully articulated and supported by a reasoned analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the record does not contain medical opinion suggestive of a nexus aside from the Veteran's statements, and while he attributes his back condition to service, he is not competent to address the etiology of degenerative disc disease. See Layno v. Bro wn, 6 Vet. App. 465 (1994). Finally, to the extent the 2015 VA examination report describes the Veteran's degenerative disc disease as "degenerative arthritis of the spine," there is no indication that arthritis manifested within the first post service year or during service to a sufficient degree to identify the disease entity, nor is there any competent and credible evidence of an in-service manifestation of arthritis, given the normal MRI and x-rays during service, to allow for service connection based on continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Instead, as noted above degenerative disc did not manifest until seven years after service. Therefore, presumptive service connection and service connection based on continuity of symptomatology are not available. For the reasons set forth above, the preponderance of the evidence is against a finding that the Veteran's current back condition is related to service. 38 C.F.R. § 3.303. Accordingly, service connection is denied. 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 Veteran's claim, that doctrine is not applicable. 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). ORDER Entitlement to service connection for a thoracolumbar spine disability is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs