Citation Nr: 1757791 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 09-06 825A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a thoracolumbar spine disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD E. Duthely, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1973 to October 1976 and with additional active duty training (ACDUTRA) and inactive duty training (INACDUTRA) service in the U.S. Air Force Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. The Veteran's current back disability did not have its onset during active service, symptoms of the current back disability were not chronic during service, did not manifest to a compensable degree within one year of service separation, and were not continuous since service separation and the Veteran's degenerative disc disease is not etiologically related to his military service. 2. The Veteran's current back disability is not a result of an injury sustained during a period of ACDUTRA or INACDUTRA. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease of the thoracolumbar spine have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify was satisfied by a May 2008 letter. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, and VA medical records. The Veteran has not identified any outstanding records needing to be obtained. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded an in-person examination in April 2013. The VA examiner provided clear explanations in support of the opinion and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The VA examination and medical opinion are adequate to decide the Veteran's claim. In September 2016, the case was remanded in order to verify the Veteran's address, verify the Veteran's periods of ACDUTRA and INACDUTRA, as well as to provide the Veteran with a new VA examination. The Veteran's address and periods of ACDUTRA and INACDUTRA were verified. The RO attempted to schedule a VA examination for the Veteran. However, the Veteran was not responsive to the RO's attempts at scheduling this examination, with no evidence of record showing that the Veteran's failure to report was based on "good cause." Therefore, there is substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). VA has satisfied its duties to notify and assist and the Board may proceed with appellate review. Service Connection for a Back Disorder The Veteran contends that his back disorder is a result of an injury sustained during active service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Degenerative joint diseases are considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. Where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; see also 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, 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 may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The Veteran has a current diagnosis of lumbar degenerative disc disease. The Veteran contends this is a result of hurting his back while carrying a pack up the stairs in 1975, and that he has experienced back pain since this incident. However, the preponderance of the evidence is against the Veteran's claim. Upon VA examination in April 2013, the VA examiner opined that the Veteran's back disorder was not etiologically related to the Veteran's service. Specifically, the examiner noted the Veteran had two episodes of back pain in service, with no evidence of a chronic back condition, injury, or fracture. The examiner further noted that the Veteran had over 10 years of normal examinations with no complaints of back pain until work-related accidents in 1990 and 1994. The April 2013 VA examiner provided an opinion that preponderates against the Veteran's claim. The opinion provided by the VA examiner is considered competent and probative evidence. The April 2013 VA examiner provided the Veteran with an in-person examination reviewed the claims file and provided a medical opinion supported by adequate rationale. The Veteran's service treatment records note the Veteran was diagnosed with lumbosacral strain in September 1975 and August 1976. However, the Veteran's August 1978, October 1980, December 1981, December 1985, May 1986, September 1989 examinations noted no recurrent back pain and a normal spine. The Veteran's next complaint of back pain was in November 1990 after falling from a ladder at work. As the preponderance of the evidence demonstrates that the Veteran did not experience chronic symptoms of a back disorder in service, continuous symptoms since service, or compensable manifestations within one year of service separation, presumptive service connection for a back disorder may not be established. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Further, there is no objective medical evidence of a direct nexus between the Veteran's back disorder and his active service or any periods of ACDUTRA and INACDUTRA. Service treatment records note that the Veteran was treated in service for back pain and diagnosed with lumbosacral strain in September 1975 and August 1976. The Veteran's subsequent treatment records note the Veteran reported he was in "good health" and his spine was normal. The Veteran's treatment records are absent of any diagnosis of, or treatment for, lumbar degenerative disc disease. The Veteran contends that his current back disorder is a result of an injury in service. However, the record does not contain any competent medical evidence to support this assertion. Although the Veteran is competent symptoms as it comes to him through his senses, he is not competent to establish a nexus through his own lay assertions. The Veteran is not competent to offer an opinion as to the etiology of a back disorder due to the medical complexity of the matter involved. Spinal disorders require specialized training for a determination as to diagnosis and causation, and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and service. See Jandreau, 492 F.3d 1372, 1377. Absent competent, credible, and probative evidence of a nexus between the Veteran's current back condition and his active service, the Board finds that his back disorder is not etiologically related to service. See 38 U.S.C.A. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA...the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Accordingly, service connection for a back disorder is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a thoracolumbar spine disorder is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs