Citation Nr: 1754954 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-32 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Penelope Gronbeck, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Hoover, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. A Notice of Disagreement was received in August 2011. In September 2012, a Statement of the Case was issued, and, in November of that year, the Veteran filed his substantive appeal (via a VA Form 9). In March 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing is of record. In February 2015 and September 2017, the Board remanded the claim on appeal for additional development and the case now returns for further appellate review. In response to the supplemental statement of the case issued in September 2017, the Veteran's representative responded that the Veteran "disagrees with the conclusions in the SSOC. He wants to continue with his appeal. He would like to be scheduled for a video hearing as soon as possible so that he can offer further evidence in the form of his testimony." As noted above, the Veteran was already afforded a hearing in March 2013 pursuant to his rights under the law. See 38 C.F.R. § 20.700 (a) (2017). To the extent that the Veteran is seeking to appear at a second hearing, the request is denied. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. The Veteran clearly and unmistakably entered service with a low back disability. 2. The Veteran's pre-existing low back disability clearly and unmistakably was not aggravated in service. 3. The Veteran's current low back disability is not etiologically related to the in-service physical activity of filling and lifting sandbags. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1112, 1113, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. VA'S DUTY TO NOTIFY AND ASSIST With respect to the Veteran's claim decided 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). LEGAL CRITERIA Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With chronic diseases shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. If this burden is met, then the Veteran is not entitled to service-connected benefits. Also, in July 2003, the VA General Counsel issued a precedent opinion, which held that, to rebut the presumption of sound condition under Section 1111 of the statute, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. A Low Back Disorder The Veteran contends that his low back disorder to include lumbar segmental dysfunction, lumbar muscle strain, lumbar spinal stenosis, and lumbar disc degeneration is related to his active duty service due to filling and lifting sandbags. (See Hearing transcript, p.19). The Veteran's entrance examination in his service treatment records referenced treatment for a lower back strain in April 1966, prior to active duty service. The Veteran's April 1967 report of medical history shows that the Veteran reported a history of swollen and painful joints. The entrance examiner noted that the Veteran was referring to his low back and that he sprained his back in April 1966. The entrance examiner also noted that X-rays were negative for evidence of a low back disorder. The Veteran's service treatment records do not show any complaints of, treatment for or diagnosis of a low back disorder. VA treatment reports showed various complaints of a back condition to include a 2007 MRI showing a herniated nucleus populous with nerve involvement, and notation that the Veteran had a history of surgery in the same area. In 2008, it was noted that the Veteran had back surgery for a bone chip pressing against his spinal cord or nerve. In November 2010, it was noted in the VA Medical Center treatment notes that the Veteran fell on a step and was found to have a herniated disc. The Veteran underwent back surgery in 2011. Records from the Social Security Administration show that the Veteran sustained an injury in 2007 when he was exercising at the YMCA, which resulted in low back and left groin complaints. X-rays revealed mild degenerative changes with no acute abnormality identified. The Veteran was diagnosed with a sprain/strain of the lumbosacral spine. SSA records also indicated that the Veteran had a herniated disc in 1994. (SSA Disability Report, Form 3368). The Veteran testified at his March 2013 Board hearing that he has had ongoing pain since service, and that he immediately sought treatment following service from a private provider who has since passed away. A July 2015 VA examination was obtained in order to determine the nature and etiology of the Veteran's back condition. The VA examiner opined that "[t]he claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness." As rationale, the examiner noted the following: "As likely as not that the Veteran's Sprain - Low Back condition preexisted service and was not aggravated beyond its natural progression by any activity during AD military service. Veteran has history of Sprain of the low back prior to EAD. There is no documented medical evidence of back injury or worsening of the back sprain condition during military service. Separation examination in 1969 is silent for any back complaints or disabilities. Nexus to in-service aggravation is not established." The Board remanded the case again in September 2017 for further commentary from the examiner regarding the specific in-service activity the Veteran claimed caused or aggravated his back disability. The same examiner provided the following rationale: "Less likely as not that the Veteran's currently diagnosed lumbar disabilities, to include lumbar segmental dysfunction, lumbar muscle strain, lumbar spinal stenosis, and lumbar disc degeneration, are etiologically related to the physical activity of lifting and filling sandbags during the Veteran's military service. Lumbar segmental dysfunction, lumbar muscle strain, lumbar spinal stenosis, and lumbar disc degeneration spine conditions are caused by trauma, injury, and ageing process. Veteran sustained back injury prior to EOD. Injury to spine prior to service is responsible for all current spine diagnosed conditions. There is no documented medical evidence of focal injury or trauma to the spine while in service. Activity of lifting and filling sandbags during active duty military service will not cause trauma to the spine to cause or aggravate currently diagnosed spine conditions. Nexus to in-service activities is not established." The medical opinion of record indicates that the Veteran clearly and unmistakably entered service with a pre-existing low back disability. See July 2015 VA opinion. Thus, while the Veteran was not symptomatic upon entrance into the military, in the VA examiner's medical expert opinion, the Veteran did have a pre-existing defect of the low back. There is no medical opinion to the contrary. The medical opinion of record also indicates that the Veteran's pre-existing low back disability clearly and unmistakably was not aggravated in service because the contemporaneous medical evidence of record failed to show evidence of back injury or worsening of the back sprain condition during military service. See July 2015 VA opinion. There is no medical opinion to the contrary. Additionally, the medical opinion of record clarified that the Veteran's activity of lifting and filling sandbags during active duty military service did not result in an injury or trauma to the low back in service that is etiologically related to the Veteran's current low back disabilities. See September 2017 VA opinion. There is no medical opinion to the contrary. The Board finds that the VA opinion regarding the etiology of the Veteran's back disorder is probative and persuasive, as it was rendered by a medical examiner that was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board has considered the Veteran's own opinion that his low back disorder is related to service. He is competent to attest to factual matters of which he has first-hand knowledge, such as experiencing pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, he is not competent to opine on the complex medical question of etiology of conditions such as degenerative changes affecting the spine. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. The question of causation of degenerative changes affecting the spine involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In a case such as this, where the condition has multiple potential etiologies, lay testimony is insufficient to establish causation. As such, the Board assigns no probative value to the Veteran's assertions regarding etiology. The Veteran has also submitted lay testimony in an attempt to show continuity of symptomatology in place of a nexus. The Veteran's degenerative lumbar disorder is a chronic condition listed under 3.303(b), 3.309(a). As stated above, the Veteran reported that his back pain has continued since service and that he sought treatment for his back pain immediately following service. Any relationship between the current back disabilities and symptoms of back pain experienced over the years must be established by medical evidence because back problems may be due to many different causes thereby rendering the question of causation a matter of medical complexity requiring medical expertise to resolve. The Veteran's intuition about the cause of his back problems is not sufficient to outweigh the opinion of the medical expert who carefully considered the specific facts of this case. Accordingly, service connection for a low back disability is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs