Citation Nr: 1806169	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  12-31 773	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Veteran represented by:	William S. Aramony, Attorney


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

M. Alhinnawi, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1961 to January 1965.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  The RO in Albuquerque, New Mexico currently retains jurisdiction.  The Board remanded this appeal for additional development in February 2017.

A personal hearing was conducted between the Veteran and undersigned in July 2016.  A transcript is associated with the record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

A chronic lumbar spine disorder was not shown in service or within one year of service discharge; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed degenerative arthritis of the spine and intervertebral disc syndrome are etiologically related to service.


CONCLUSION OF LAW

The criteria for service connection for a low back disability have not been met.  38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).




REASONS AND BASES FOR FINDING AND CONCLUSION

The matter was remanded in February 2017 for additional development.  That included obtaining outstanding VA treatment records and affording the Veteran a VA examination with a medical opinion.  The Veteran was afforded a VA examination in June 2017.  Review of the record shows that VA made sufficient attempts to obtain identified private treatment records.  With respect to treatment records from the Brooklyn VA Medical Center, VA made a formal finding of unavailability of such records in September 2010.  There has been substantial compliance with the Remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008); Dyment v. West, 13 Vet. App. 141 (1999).

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist, to include the adequacy of the June 2017 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 June 2017 VA examination diagnosed degenerative arthritis of the spine and intervertebral disc syndrome.  Element (1) of Shedden has been met.

With respect to Shedden element (2), service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a lumbar disorder.  It is also highlighted that the Veteran's separation examination in January 1965 fails to document any complaints of or observed symptoms related to a lumbar disorder.
However, the Veteran asserts that he injured his back in service jumping from a flight deck.  See July 2016 Hearing Testimony.  A lay statement from a fellow servicemember corroborates the Veteran's report of the injury.  See August 2009 Buddy/Lay Statement.  The Board finds these statements credible and sufficient to satisfy Shedden element (2).

What remains for consideration is whether there is a nexus between the Veteran's in-service back injury and his current disability.  The Board again notes that the Veteran's service discharge examination is silent with respect to any chronic low back disorder.  More importantly, there is no competent evidence of a nexus between the disability and the Veteran's service.  The June 2017 VA examiner opined that the Veteran's back disability was less likely than not incurred in or caused by active duty service.  The examiner determined that the lay reports of back symptomology were accounted for by previous back diagnoses, rather than his current disability.  The examiner also cited the absence of notation of low back symptomology in the service treatment records and post-service medical examinations indicating the development of his current disability long after service.

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.  Although the Veteran asserts that a VA doctor told him that his disability was "service related for several reasons" in 1973, there is no such adequately supported opinion in the record for the Board to consider.  See July 2016 Correspondence.

The Board acknowledges the competent and credible lay evidence from the Veteran and others reporting his back symptomology. Lay individuals are competent to report observable symptoms.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Nevertheless, lay individuals are not competent to opine on the etiology of a complex medical condition such as degenerative arthritis, and to the extent these statements attribute the Veteran's disability and related symptoms to service, their statements are afforded no weight.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Turning to presumptive service connection for the Veteran's low back disability, the record does not reflect a diagnosis of arthritis within one year of service.  The Veteran does not contend otherwise.  Although the record contains a diagnosis of "chronic lumbosacral strain" in November 1966, such does not the meet the requirements of 3.309(a).  The diagnosis was also rendered more than one year after service.  See August 2009 Medical Treatment Record, Non-Government Facility.

With respect to continuity of symptomatology, the Veteran reported experiencing back pain since his in-service injury, which lay statements from his spouse and C.B. have also reported.  See August 2009 Correspondence; August 2011 Buddy/Lay Statements.  The Board again notes that the service treatment records are silent with respect to any complaints of back pain.  Moreover, at the time the Veteran sought treatment for back pain in November 1966, he denied a "specific history of injury."  It was similarly noted at that time that the Veteran was "previously in the Navy served for four years and he had no history of back trouble."  The Veteran blamed his back pain on doing a "considerable car driving (thunderbird)" and having to hold urination for prolonged periods.  This contemporaneous evidence has greater probative value than history more recently reported by the Veteran.  Curry v. Brown, 7 Vet. App. 59, 68 (1994).  To the extent the Veteran or others report continuity of back symptomatology, their reports are outweighed by the objective evidence of record.  


ORDER

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



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



Department of Veterans Affairs