Citation Nr: 1754907 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-45 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for low back disability (claimed as back issues). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from August 1959 to February 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. 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 A low back disability was not shown in service and the preponderance of the competent and credible evidence does not show that a current low back disability was incurred in or aggravated by service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated in military service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 101, 1101, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case. The appellant has not alleged any notice or development deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). II. Service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 C.F.R. § 3.303 (a). The term "active military, naval, or air service" includes active duty, any reserve service periods of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of or inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A § 101 (22), 101(24) (West 2014); 38 C.F.R. § 3.6 (2017). 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). The second and third elements may be established by showing continuity of symptomatology for certain specified diseases. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and certain chronic diseases such as arthritis become manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence, that there were characteristics manifestations of the disease to the required degree during that time. Id. Presumptive periods do not apply to periods of ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). A veteran is competent to report on that of which he or she has personal knowledge. Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson 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, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The appellant alleges that his current diagnosis of lumbar arthritis was caused by an in service incident when he fell off the back of a truck. See e.g., August 2016 Statement in Support of Claim; September 2016 VA C&P Examination Report. The appellant's July 1959 entrance examination does not note any back related issues. The appellant's STRs mention two incidents of lower back pain. The appellant was treated for lower back pain on October 2, 1959 and again on October 5, 1959. See October 1959 STR. Upon his exit from service, the appellant was found to have a diagnosis of scoliosis with slight convexity to the left. See January 1960 Exit Examination. The appellant's post-service private treatment records indicate that he began experiencing lower back pain a few weeks prior to October 2012. See October 2012 Initial Examination. In October 2012, the appellant had an x-ray which noted severe degenerative joint disease and degenerative disc disease of the lumbar spine and joint spaces. Id. The October 2012 private treatment records are the first complaints of low back symptoms post service, more than 50 years after discharge from the appellant's period of ACDUTRA. Maxson v. West, 12 Vet. App. 453 (1999). In September 2016, the appellant was afforded a VA C&P Examination Report. The examiner diagnosed the appellant with lumbar arthritis. The examiner opined that the appellant's lumbar condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that the appellant was treated for lower back pain on October 2, 1959 and again on October 5, 1959; but did not have any further complaints of back pain and residuals of back pain were not found at discharge. The examiner thus found that the back condition which occurred in October 1959 was self-limiting. The examiner further reasoned that as none of the post-service medical records referenced back symptoms, conditions, or diagnoses to the appellant's service, his current back symptomatology is not thought to be related to his injury in-service. The Board finds that opinion constitutes probative evidence on the medical nexus question, based on review of the appellant's documented medical history and assertions and physical examination as well as consideration of the appellant's contentions. The opinion provided a clear rationale based on an accurate discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Significantly, neither the appellant nor representative has presented or identified any contrary medical opinion that supports the claim for service connection for a low back disability. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The only other evidence of record supporting the appellant's claim is his own lay statements. The Board finds the appellant's statement that he suffered back pain since service competent. However, the Board finds that the statement is not credible. The earliest note of post-service back pain is referenced in an October 2012 chiropractic examination. Significantly, when seeking treatment in October 2012, the Veteran reported that he had low back pain for one week. Rucker v. Brown, 10 Vet. App. 67 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Therefore, the Board finds the Veteran's statement contemporaneous to his claim for VA benefits that he had experienced back pain since service is not credible. Cartright v. Derwinski, 2 Vet. App. 24 (1991) (a pecuniary interest may affect the credibility of testimony). The Board further acknowledges the Veteran's statement that he was treated for back pain prior to October 2012 but was not able to obtain the treatment records due to the passage of time. However, the Veteran's bare statement that he received such treatment made in support of a claim for benefits, and absent any supporting evidence, is simply not sufficient to establish such treatment or to make an informed determination as to the credibility of that statement. Further, while the appellant is competent to describe his symptoms, the Board finds that there is no evidence of record to show that he has the specialized medical education, training, or experience necessary to render a competent medical opinion as to the nature and etiology of the claimed low back disability. Diagnosing low back disability and providing an etiological opinion is medically complex in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, any lay statements are outweighed by the probative medical opinion evidence definitively finding that the Veteran's current lumbar arthritis disability is not related to service. Accordingly, the preponderance of the evidence weighs against a relationship to service. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a low back disability is denied. See 38 U.S.C. A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a low back disability is denied. _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs