Citation Nr: 1754869	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  16-59 602	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T.L. Bernal, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1955 to January 1958.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran's chronic low back disability, to include degenerative arthritis of the spine, did not have onset during active service, was not caused by active service, and arthritis did not manifest within one year of separation from active service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for a low back disability have not all been met.  38 U.S.C. §§ 1101, 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017).  "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

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).

In addition, certain chronic diseases (e.g., 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; 38 C.F.R. §§ 3.307, 3.309. 

The chronicity provisions are applicable where evidence, regardless of its date, show that a Veteran had a chronic condition, as defined in 38 C.F.R. § 3.309(a), in service, or during an applicable presumptive period, and still has that disability.  That evidence must be medical unless it relates to a condition as to which lay observation is competent.  38 C.F.R. § 3.303(b). 

This rule does not mean that any manifestations in service will permit service connection.  To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic".  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b). 

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102


Analysis

The Veteran has asserted that he has a low back disability that is related to his active service.  The Veteran's service treatment records document that he complained of a sore back in August 1955 from lifting cans.  Additional low back complaints are not indicated during service, to include at the time of service separation examination in December 1957.  His musculoskeletal system was reported as normal. 

Review of the record reflects that the Veteran filed a post service claim for various conditions in 1958, but did not fully develop a claim for a low back disability until October 2014.

A VA examination was conducted in January 2015.  The examiner reviewed the claims file.  The Veteran gave a medical history that included in-service injury to the back. Specifically, he stated that he hurt his back while lifting cans.  His duties were adjusted due to his back complaints.  The Veteran reported that his back pain had increased in severity in the last few years.  The examiner diagnosed degenerative arthritis of the spine.

Following examination of the Veteran, the VA examiner opined that it was less likely than not that his current back disability was related to military service.  In this regard, the examiner noted that there was only one documented instance of in-service treatment for acute low back strain.  Moreover, the separation examination noted that the spine was normal.  The examiner further noted that back strain was an injury to the muscles and ligaments to the back which was a self-limiting injury.  

The VA examiner noted that the Veteran's medical records only date back to 1995, and the Veteran did not mention his back injury until 1988, over 30 years after service.  The Veteran reported that after discharge from the service, he worked in a machine shop where he lifted heavy equipment and supplies.  The examiner opined that it is more likely that the Veteran's work of lifting heavy equipment and supplies is what has attributed to the current back disability.

The Board finds that the January 2015 VA examination and opinion report is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Therefore, the Board finds the VA examiner's nexus opinion presented in the January 2015 examination report to be of significantly high probative value. 

The record reflects only one visit during service for back complaints.  Further, there is no diagnosis of a low back disability following separation from service until 1995, and he did not seek service connection for a low back disability until 2014, although he filed a claim for other conditions prior to 2014. 

In view of the above factors, the Board concludes continuity of low back symptomatology after active duty is not established, either through the objective medical evidence or through his personal statements.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 200) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability).  See also Mense v. Derwinski, 1 Vet. Ap. 354, 356 (1991) (affirming the Board's denial of service connection where the Veteran failed to account for lengthy time period between service and initial symptoms of disability); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance J. concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder.  Also see Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim).

The Veteran has not demonstrated that he has expertise in medical matters; he is thus a lay person, and not a medical expert.  Although lay persons may be competent to provide opinions as to some medical issues, as the specific questions in this case regarding the clinical existence and the nature and medical etiology of his chronic low back disability fall outside the realm of common knowledge of a lay person.  Whether a current back disability is related to an injury decades ago, under the facts of this case, is a complex medical question and one that requires medical expertise to address.  The Veteran lacks the competence to present a valid medical diagnosis and provide a probative medical opinion linking this claimed disability to his period of military service.  His statements and assertions in this regard, absent any supportive objective medical evidence, are thusly not entitled to any probative weight. 

Further, there is no indication from the record that the Veteran had low back arthritis that manifested to a compensable degree within one year of separation from active service.  Additionally, the Veteran has not credibly asserted a continuity of low back pain since his separation from active service.  Therefore, presumptive service connection is not warranted in this case. 

In sum, the Veteran was treated a single time during service for low back strain. The VA examiner has competently opined that the Veteran's low back disability is not etiologically related to his active service and the VA opinion is the most probative evidence of record.  Additionally, the Veteran was not diagnosed with low back arthritis within one year of his separation from active service. 

Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a low back disability, to include degenerative arthritis of the spine, is not warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for a back disability is denied.



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs