Citation Nr: 1802964 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 09-23 140A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a back disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Barrett, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to December 1969 and from April 1970 to September 1971. This matter comes to the Board of Veterans' Appeal (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction is currently with the RO in Cleveland, Ohio. In May 2014, the Veteran testified at a video hearing before the undersigned. A transcript of that hearing has been associated with the claims file. In October 2014, August 2016, and May 2017 the Board remanded this matter for further development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT A lumbar spine disability did not manifest in service or within a year of discharge, and is not shown to be etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5103 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303 (2017). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 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 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 identity 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). Service connection for certain chronic diseases, including arthritis, may also be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. § 3.307, 3.309. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)(a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002)(tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). A layperson is generally incapable of opining on matters requiring medical knowledge and, specifically is not competent to provide an opinion as to etiology in such cases. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). At his May 2014 Board hearing, as well as in written submissions to the RO, the Veteran has claimed that his current low back disability was caused by having to carry heavy loads of ammunition for 10 miles a day, up and down mountains and during combat in the Republic of Vietnam, all when he weighed no more than 120 pounds. He testified to having back pain during service and continuing to have it after service, and that he just learned to live with the pain. The record shows that the Veteran's military occupational specialty was mortar-man and he is in receipt of the Combat Action Ribbon (CAR) due to his service in combat in the Republic of Vietnam. Service treatment records are negative for any treatment or complaints of a back injury or chronic condition. Within a year of service discharge, the Veteran underwent a VA examination in January 1972 for a variety of complaints; low back pain was not one of them. Post-service medical records show the Veteran sustained a back injury in July 2007; subsequent records reflect diagnoses of compression fracture at L2, a herniated nucleus pulposus at L5-S1 with posterior annular tear, and spondylosis. See VA X-ray dated in July 2007; VA magnetic resonance imaging evaluations (MRIs) dated in August 2007 and December 2012; and VA treatment records dated from July 2007 to July 2013. Prior to 2007, there is no clear evidence of any acute back injuries. These medical records do not contain nexus opinions linking any current back disability to service. Pursuant to the Board's October 2014 remand, the Veteran underwent a VA examination in December 2014. The diagnosis was arthritis of the lumbosacral spine with a history of compression fracture at L2. The examiner concluded that it was more likely than not that the Veteran's current back complaints were related to a compression fracture at L2 in July 2007 and natural age progression. His rationale was that there was a remote back injury in service without a diagnosis of fracture or arthritis, and then no evidence until 2008. In May 2017, the Board remanded the appeal for another VA opinion, noting that the 2014 opinion and supporting rationale were inadequate as it did not reflect consideration of the Veteran's testimony of continued back pain since service discharge. The Veteran was afforded another VA examination in June 2017. The examiner concluded that the Veteran's current back conditions (i.e. degenerative arthritis of the lumbosacral spine; history of compression fracture at L2; and herniated nucleus pulposus at L5-S1 with posterior annular tear) are not related to complaints in service. The examiner explained that most sprains, strains, and musculoskeletal issues generally resolved without residuals. In this case, there is no objective continuity of care for the Veteran's claimed condition from time of service. The examiner also noted that the Veteran had some post-military employment that was physically demanding and the Veteran is shown to have sustained a work-related back injury in 2007. Further, degenerative arthritis is [due to] normal age progression. There was no objective evidence these conditions had their onset in service or were otherwise related to in-service events, subjective complaints, objective diagnosis, and/or treatment; and no objective evidence these conditions had onset within a year of service discharge. Subsequent to the Board's most recent Remand, records from the Social Security Administration (SSA) were obtained and added to the claims file. The SSA records reflect that the Veteran was found to be disabled as of June 2007 related to his back disability. The clinical records in the SSA file show that the Veteran worked as an operations manager at an apartment complex from 1987 until 2007 when he became disabled due to a back injury that resulted in compression/compound fracture of L2. He reported that in this position, his job duties often required him to lift items weighing 100 pounds or more. The records show that the Veteran was reportedly involved in a fight in July 2007 and was pushed into a wooden pole. On a self-completed application form, the Veteran stated that his back injury occurred when he was "attacked by some men." Emergency room records from the Lakewood Hospital dated in July 2007 show a diagnosis of compression fracture of L2 based on CT scans following an alleged assault. Additional records from Lakewood do not show any back complaints or treatment prior to 2007. Based on the competent and probative evidence, a causal nexus has not been established between the current back disabilities and service. At the outset, the Board notes that the Veteran is competent to report having back pain in service as he can observe and report the presence of such a symptom. Also, his report of experiencing falling onto his back during combat in Vietnam is accepted. 38 U.S.C. 1154(b). However, the presumption afforded under 38 U.S.C.A. § 1154 (b) deals only with the question of whether a particular disease or injury was occurred in service, that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent evidence is required. Stated differently, competent evidence of a current disability and of a nexus between service and a current disability is still required. Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536(1997); 38 C.F.R. § 3.304 (2017). The most competent and probative evidence shows that the current back conditions are not related to any injuries sustained in service. The favorable evidence in this case, with respect to nexus, is in the form of lay testimony and statements from the Veteran. Although the Veteran asserts that his back conditions are related to service, he has not demonstrated that he possesses the education, training, and experience to offer nexus opinions on complex matters such as the etiology of his current back disabilities. Degenerative arthritis of the lumbosacral spine, L2 lumbar fractures, and herniated nucleus pulposus are not simple medical conditions. These conditions all involve internal disease processes, which generally require clinical and diagnostic studies to diagnose and treat. In short, they involve medically complex processes. Therefore the Veteran, a layman with no advanced medical knowledge or training, is not competent to state that these disorders had onset in service. He is also not competent to provide opinions about their etiology for the same reasons. Further, in this case, these conditions have multiple possible etiologies, as the Veteran sustained a serious lumbar spine injury after service- and with respect to degenerative arthritis- a clinician has noted that it can be related to the aging process. Thus, the Veteran's lay statements regarding causal nexus has little probative value and competent medical evidence is needed. The competent, and persuasive, medical evidence is represented by the June 2017 VA opinion. This VA opinion establishes that the current lumbar disabilities are not related service, to include as a result of any injuries sustained therein. This opinion is persuasive as it was based upon a review of the Veteran's clinical history, lay testimony, and reflects consideration of his contentions. The conclusion reached by the examiner appears to be consistent with the clinical evidence of record. Further, the examiner is qualified through education, training, and experience to offer a medical opinion and supported his opinion with cogent clinical rationale. The Veteran has not offered any other competent medical opinions regarding nexus for the Board to weigh against the VA medical opinion. Finally, presumptive service connection under the theory of chronicity and continuity is not warranted. 38 C.F.R. § 3.303(b). The Veteran has a current diagnosis of arthritis of the lumbar spine, which is considered a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). However, arthritis was not diagnosed in service and there is insufficient evidence to identify or establish arthritis as a disease entity therein. Moreover, the credible evidence does not show continuity of symptoms thereafter, to include within the presumptive period. A credible report of continuity of symptomatology after service has not been established as the service treatment records and separation examination report were normal. A copy of a January 1972 VA examination report shows the Veteran had no back complaints although he did report at least five other ailments at that examination. In addition, post-service records fail to show complaints (or treatment) for back pain until he sustained a work-related injury in 2007. The Veteran reported to SSA that he was able to lift items 100 lbs. or more, during his 20-year employment as an operations manager. All of this evidence weighs heavily against the Veteran's current report of a continuity of back pain since service and significantly diminishes the probative value of his current testimony that is presented in an attempt to establish service connection. Moreover, the preponderance of the evidence shows arthritis was not diagnosed until many years after service. Therefore, presumptive service connection is not warranted in this case either the chronic disease manifesting to a compensable degree within one year from the date of separation of such service, or through a demonstration of continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a)(2017). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. Service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a back disability is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs