Citation Nr: 1800392 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-31 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jasmin C. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1976 to July 1998, with subsequent unverified service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This claim was previously remanded in February 2014 and July 2017 for further development. The Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. FINDING OF FACT The Veteran's low back disability is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest within one year of discharge. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify the Veteran of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). The VA satisfied its duty to notify by a letter in December 2006. In addition, VA has a duty to provide assistance to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran received a VA examination in September 2016. In a July 2017 remand, the Board directed that the RO schedule the Veteran for an additional VA examination to adequately address the Veteran's in-service history of treatment for low back pain and spasms. The VA examination took place in August 2017 and the Board finds that the examination was adequate. See 38 C.F.R. § 4.2. In this regard, the Board acknowledges the representative's arguments against the opinion, but finds these arguments unpersuasive as the evidence indicates the examiner used the correct facts and the Board does not find error with the examiner's rationale. Thus, the Board's July 2017 directives have been completed, and the case may move forward without prejudice to the Veteran. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue before the Board, based on the evidence and procedural history, is only before it on a direct basis. II. Service Connection The Veteran contends that his low back disability is related to his active duty service and his in-service complaints of back pain and spasms. Service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in or aggravated by active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. "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. 2009) (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). Service connection may also be granted for chronic disabilities, such as arthritis, if the disability is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In January 2007, the Veteran was diagnosed with moderately severe degenerative disc disease L5-S1 with arthritic changes also of the corresponding facet joint, and straightening of the normal lordosis. VA examinations in September 2016 and August 2017 confirmed a diagnosis of degenerative lumbar spondylosis. As such, the issue of a current disability is not in dispute. Turning to the Veteran's period of active service, in a June 1976 Report of Medical History, the Veteran denied any recurrent back pain. On examination, the spine was noted as normal. A May 1983 treatment record indicated a complaint of lower back pain for approximately 24 hours. The Veteran stated that he had back problems about eight years prior to the examination. It was noted that the Veteran had full range of motion and possible back spasm. The Veteran was prescribed Bengay and moist heat. A May 1984 treatment record noted a complaint of low back pain that began when the Veteran was lifting duffle bags. The Veteran reported aching pain radiating to the left gluteus maximus, with pain starting when bending over or lifting his left leg. He also reported sleeping on the ground the previous night. Muscle spasm was ruled out and Parafon Forte and heat applications were recommended for treatment. Periodic examinations in April 1986, August 1988, and August 1993 revealed normal spine and the Veteran denied any recurrent back pain in the August 1988 and August 1993 Reports of Medical History. A February 1989 screening note indicated complaint of low back pain for one week after the Veteran dived off the springboard. He was prescribed Robaxin and Motrin. A treatment note dated December 1997 indicated a complaint of middle back pain. Upon retirement examination in February 1998, the Veteran reported recurrent back pain, but examination revealed normal spine. Post-service, medical records indicate treatment for low back pain in October 2006. The Veteran claimed he was injured multiple times in service, carrying heavy loads, working as a maintenance laborer, and doing heavy lifting and carrying. The Veteran received a VA examination in September 2016 and reported flare-ups and functional loss, with stiffness and soreness. The examiner determined that the Veteran's degenerative lumbar spondylosis was not caused by or a result of illness, injury, or event shown in the service treatment records. The examiner reasoned that the Veteran's in-service complaints of a back condition indicated only acute and isolated instances and not a chronic disability. In addition, the examiner noted that the Veteran's February 1998 retirement examination was negative for any complaints of chronic disability with regard to the thoracolumbar spine, and the Veteran was not treated for any chronic back disability during active military service or within the presumptive period after separation. Ultimately, the examiner concluded that the Veteran's degenerative lumbar spondylosis was a stand-alone entity, neither due to nor aggravated by active military service. He rationalized that disc degeneration and accompanying arthritis is a common development, and age related changes are present in 40 percent of adults over age 35 years and in almost all individuals over age 50. In a July 2017 remand, the Board found the September VA examination did not adequately discuss the Veteran's in-service treatment for back pain and spasms, and thus a new examination was ordered. On VA examination in August 2017, the examiner opined that it was less likely than not (less than 50% probability) that the Veteran's back disability was incurred in or caused by the claimed in-service injury. The examiner reviewed treatment notes dated May 1983, May 1984 and February 1989, relative to reported back pain and spasms, and noted that there was no indication of follow-up treatment for these complaints. He also reviewed periodic examinations dated April 1986, August 1988, and August 1993, and noted that the examinations revealed normal spine and were silent for diagnosis of or treatment for any chronic thoracolumbar spine disability. He also noted that the Veteran denied recurrent back pain. As to the Veteran's February 1998 retirement examination, the examiner acknowledged that the Veteran reported recurrent back pain. However, the examiner opined that the Veteran's statement regarding recurrent back pain did not constitute a diagnosis of a chronic disability. He noted that the objective portion of the examination (physical examination and review of medical history) is silent for diagnosis of or treatment for any chronic thoracolumbar spine disability and documents normal musculoskeletal spinal examination. The August 2017 VA examiner also determined that the Veteran's muscle spasms during active military service were acute and isolated, as evidenced by periodic examinations performed subsequent to the episodes, wherein the Veteran specifically denied recurrent low back pain and physical examination documented normal thoracolumbar spine. The examiner further opined that straightening of the normal lordosis due to muscle spasm noted on January 2007 radiologic testing was a stand-alone condition, neither due to nor aggravated by the episodes of muscle spasm noted during service, and that acute muscle spasm is the most common cause of straightening lumbar lordosis. The examiner reasoned that the acute and isolated episodes of muscle spasm noted during service resolved without residual, as evidenced by periodic examinations. As to the Veteran's degenerative disc disease, the examiner opined that this condition was consistent with normal and expected aging, and not caused or aggravated by active duty or the Veteran's in-service episodes of muscle spasm and back pain. The examiner cited medical literature and rationalized that disc degeneration and accompanying arthritis is a common development and age-related changes are present in 40 percent of adults over age 35 years and in almost all individuals over age 50. The examiner also addressed the Veteran's February 2008 and August 2010 lay statements that he sought treatment for a lower back condition in-service and was diagnosed with muscle spasms and moderately severe degenerative disc disease. However, the examiner noted that the subject January 2007 imaging study took place approximately 10 years after separation from active duty and the Veteran's statement referencing a "lower back condition" did not constitute a diagnosis. The Board places high probative weight on the August 2017 VA opinion, as the examiner reviewed the Veteran's claim file and recent VA examination and evaluated the pertinent service treatment records and lay statements to provide adequate rationale for the opinion that the Veteran's low back disability is less likely than not related to service. While the examiner ultimately determined that the Veteran has a low back disability, the probative medical evidence of record does not support a link between the Veteran's disability and his period of active duty. Instead, the most probative evidence of record demonstrates that the Veteran's in-service complaints of muscle spasm and back pain had resolved and his degenerative disc disease is due to the normal process of aging. The Board acknowledges the Veteran's assertions in his VA Form 9 appeal that his claimed disability is due to an in-service injury and that he informed his doctor at discharge that he had a back problem, but did not seek medical help for it. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flat feet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). While the Veteran is competent to describe his symptoms, without medical training, he has not demonstrated the competency to opine on matters requiring medical expertise, such as the etiology or natural progression of a low back disability. See Jandreau, 492 F.3d at 1376. As such, the Board assigns little probative weight to the Veteran's assertions that his low back disability is related to his military service. In regard to continuity of symptoms and presumptive service connection, the Board finds that the Veteran's disability is properly afforded such consideration, as arthritis is an enumerated condition under 38 C.F.R. § 3.309(a). See Walker, 708 F.3d at 1331. The Board acknowledges the Veteran's assertion that he has had back pain continuously since service. However, the Board notes that these assertions are not consistent with the Veteran's February 1998 retirement examination. While the Report of Medical History contains subjective complaints of recurrent back pain, examination of the spine was normal and the examination report was silent for diagnosis or treatment of a chronic disability with regard to the thoracolumbar spine. The Board does not find that the lay statements of pain since service constitute credible evidence of a nexus between the Veteran's military service and the currently diagnosed disability. As discussed above, the most probative medical opinion concluded that the low back disability is not due to the Veteran's period of active service. Therefore, the Board places more probative value on the September 2016 and August 2017 VA examinations in determining the etiology of the Veteran's condition. Furthermore, the most competent and credible evidence of record is against a finding that that the Veteran's disability manifested to a compensable degree within one year of the Veteran's discharge from service. See 38 C.F.R. § 3.307 (a), 3.309(a). Instead, the probative evidence of record shows that the Veteran was not diagnosed with degenerative disc disease until 2007, almost ten years after service. The competent evidence does not establish that the Veteran's currently diagnosed low back disability is related to his period of active duty. There is no evidence of record to demonstrate a probative medical link between the Veteran's low back disability and his time in service. As the weight of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs