Citation Nr: 1803157	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  11-18 584	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for a low back disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

M. Alhinnawi, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1967 to December 1968.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  Entitlement to service connection for bilateral hearing loss and tinnitus was granted in a May 2011 rating decision.  In October 2011 correspondence, the Veteran withdrew his claim for peripheral neuropathy.  As such, these issues are no longer before the Board.

A personal hearing was conducted between the Veteran and undersigned in August 2017.  A transcript is associated with the record.


FINDING OF FACT

A chronic low back disorder was not shown in service or for many years later; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed back disability is etiologically related to service.


CONCLUSION OF LAW

The criteria for service connection for a low back disorder have not been met.  38 U.S.C. §§ 1110, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).



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REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist, to include the adequacy of the February 2016 VA examination.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

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 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease initially diagnosed after service 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 for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from active service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  Arthritis is a qualifying chronic disease.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The February 2016 VA examination diagnosed intervertebral disc displacement L5-S1, post-laminectomy syndrome, and degenerative disc disease (DDD) of the lumbar spine.  Element (1) of Shedden has been met.

With respect to Shedden element (2), the Veteran's December 1968 separation examination fails to document any complaints of or observed symptoms related to a chronic low back disability.  Nevertheless, the service treatment records contain notations of a backache in August 1967, as well as low back pain and a spasm of the left side in October 1967.  The Board finds this in-service low back symptomology sufficient to satisfy Shedden element (2).

What remains for consideration is whether there is a nexus between the Veteran's in-service low back symptomology and his current diagnoses.  The Board again notes that the Veteran's separation examination is silent with respect to any chronic low back disorder.  More importantly, there is no competent evidence of a nexus between the Veteran's diagnoses and service.  

The February 2016 VA examiner opined that the Veteran's current back disability was less likely than not incurred in service or related to in-service treatment for low back pain, backache, and muscle spasms.  The examiner remarked that the Veteran's separation examination was normal and that the symptoms which resulted in back surgery initiated in 1987, almost two decades after service.  The examiner also noted the absence of a nexus connecting the Veteran's separation from service and the onset of symptomology.

The Board affords the examiner's opinion great weight, as it was based on medical principles and adequate rationale, and the examiner considered the Veteran's lay statements and history of symptom manifestation.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  There are no competent opinions to the contrary.  In addition, the absence of complaints or treatment for back pain for years after separation is also afforded significant weight.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

The Board acknowledges the Veteran's statements attributing his disability and other symptoms to service, as well as the lay evidence from others describing his symptomology; nevertheless, the Veteran is not competent to opine on the etiology of a complex medical condition such as a low back disability, and his statements are therefore afforded no weight.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Turning to presumptive service connection for the Veteran's DDD of the lumbar spine, the record does not reflect a diagnosis of DDD within one year of service.  The Veteran does not contend otherwise.  Although he claims that he has experienced low back pain continuously since service, objective evidence of such pain does not appear in the record until long after separation from service.  At the time the Veteran sought treatment for low back pain in October 1987, he did not report any history of back trauma or continuous pain since separation from service.  See January 2009 Medical Treatment Record, Government Facility.  

Contemporaneous evidence has greater probative value than history as reported by the Veteran.  Curry v. Brown, 7 Vet. App. 59, 68 (1994).  The Veteran's reports are outweighed by the objective evidence of record, and he is therefore not entitled to service connection on a presumptive basis.


ORDER

Entitlement to service connection for a low back disorder is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs