Citation Nr: 18140192 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-20 986 DATE: October 2, 2018 ORDER Service connection for a low back disability is denied. FINDING OF FACT The Veteran’s low back disability developed many years after his separation from service and is not related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1952 to December 1955 and was awarded the National Defense Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Board reopened and remanded the claim of entitlement to service connection for a low back disability for additional development. In May 2018, the Board sought an expert opinion in connection with this appeal from the Veterans Health Administration (VHA). It received the requested opinion and an addendum opinion in May 2018 and July 2018. In May 2018, the Veteran submitted post-service treatment records and did not waive initial Agency of Original Jurisdiction (AOJ) consideration of this evidence. The Veteran perfected his appeal in June 2015. The Board notes that the AOJ did not readjudicate the case and issue a Supplemental Statement of the Case (SSOC). However, section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. § 7105 by adding new paragraph (e), provides that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. As previously noted, the substantive appeal in this case was received in June 2015 and AOJ consideration of this evidence has not been explicitly requested. Therefore, a waiver of this additional evidence is not necessary and the Board may properly consider all additional evidence submitted. Veteran’s Contentions The Veteran is seeking service connection for a low back disability, which he asserts is related to an in-service injury he has described as a fall from the wing of an aircraft he was fueling. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis become manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service treatment records show that in June 1955 the Veteran sought treatment for soreness in his lower back; an accompanying note reflects that he had recently been hospitalized for three months following a motor vehicle accident. On examination in December 1955, prior to separation from service, no abnormalities of the spine were found. However, during a January 1956 VA examination conducted in connection with the Veteran’s initial service connection claim, he complained of pain in the small of his back with heavy lifting, bending, and stooping. The VA examiner diagnosed him with an old injury of the lumbar spine and noted mild residuals. Post-service treatment records dated since 1976 document treatment for a low back disability. Treatment notes from September to October 1976 contain reports of back pain and a herniated disc, which the Veteran had suggested was the result of 12-hour workdays managing three dry cleaning business and his construction business. A February 1977 treatment note documents a diagnosis of resolving lumbar strain. The Veteran was admitted to the hospital in November 1980 for surgery of a herniated lumbar disc. At the time, the Veteran endorsed a history of low back and right leg pain that began about five years earlier while he was working with heavy equipment. The treating doctor noted that the Veteran endorsed recurrent intermittent back pain since that incident but nothing severe until February 1980. Clinical evidence does not show further reports of back pain until July 1987. A May 2001 lumbar MRI study showed facet hypertrophy and broad-based disc bulges. A February 2007 lumbar x-ray and MRI studies diagnosing moderate central canal stenosis at the L4-L5 level secondary to hypertrophic degenerative facet arthropathy, postoperative changes within the right lamina at the L5-S1 level, and epidural fibrosis associated with the right S1 nerve root. A March 2010 MRI study showed moderately severe relative central spinal stenosis at L4-L5, edema and swelling of the right nerve root at L5-S1 status-post right-sided laminectomy at L5-S1, and degenerative disk and facet changes at all levels. The July 2013 VA examiner confirmed that the Veteran currently had a low back disability, citing a 1980 diagnosis of degenerative disc disease and lateral canal stenosis of the lumbosacral spine, status post right-sided laminectomy, but found that his current low back disability was not related to his in-service back complaints. In support of that opinion, the examiner noted negative in-service x-rays and a “20-year span of silence for back issues between [s]eparation and onset of back symptoms in 1980.” She further stated that the most common cause of lumbar spinal stenosis was age-related changes of the spine. However, as the VA examiner did not address the Veteran’s assertion that he has experienced back pain since service and did not address the 1956 VA examiner’s finding that some residuals of an old back injury were present, in January 2017, the Board found the opinion was inadequate and another VA examination and opinion was necessary. The Veteran was afforded another VA examination in March 2017. The Veteran reported that he fell off an airplane wing in service and complained of back pain during service. The Veteran reported that in 1975 he had an onset of back pain that radiated into his right leg. The March 2017 examiner diagnosed the Veteran with intervertebral disc syndrome and degenerative arthritis of the spine, citing a 1980 diagnosis of acute nerve compression from a probable herniated disc. The examiner opined that the Veteran’s low back condition was less likely than not related to service because there was a temporal gap of 25 years between the initial injury and his 1980 back surgery with no evidence of medical care during this time. The Board points out that the examiner’s rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a “medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant’s current disability and his military service.” As noted above, the Board sought a VHA expert medical opinion from a neurologist in May 2018, and the opinions were provided in May and July 2018. The expert noted that the Veteran presented for a consultation for back pain in 1980 and endorsed an onset of back pain only five years earlier after working with heavy equipment and that he had intermittent bouts of pain since then. The expert referenced the Veteran’s partial hemilaminectomy and that a ruptured and degenerated disc was identified and removed during the procedure. He also noted that service treatment records documented hospitalization in 1955 after a car accident and complaints of upper lumbar pain in June 1955. However, he also explained that the x-ray findings at that time were negative and the records suggest that the hospital admission was for care and therapy for a recurrent pilonidal cyst and not primarily or partially related to an acute back injury. Although the Veteran was found to have mild residuals related to his back at the 1956 VA examination, the expert opined that the 1980 medical records indicate the Veteran sustained a ruptured disc around 1975 that resulted in disc degeneration, lamina thickening, and crowding of the right nerve root over the next five years. He further concluded that the Veteran’s in-service back injury was minor and as such, his current low back condition is likely primarily due to his post-service injury. As for the Veteran’s lay statements that the Veteran has continued to experience low back pain since the initial in-service injury, the expert noted that the 1980 post-service medical records do not support this assertion. He again referenced the Veteran’s statements at the time that his back pain began five years earlier after working with heavy equipment with intermittent bouts of pain but nothing severe until February 1980. The expert stated that this indicates that the Veteran had intermittent recurrences of pain since the 1975 injury, not the in-service injury. The expert further noted that there was no mention of recurrent pain since the in-service injury, which would have been highly relevant information at the time of the 1980 medical visits if that were the case. After review of the record, the Board finds that service connection for a low back disability is not warranted. Turning first to the Veteran’s statements, the Board acknowledges that laypersons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran may be competent to report the manifestation of symptoms of his low back disability, he is not competent to provide medical opinions regarding the causes or aggravating factors of that condition, particularly insofar as such diagnoses as fractures and degenerative disc disease are concerned. As the Veteran has not shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) opinions on medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998). Hence, his lay assertions are of minimal probative value. In addressing the competent evidence of record, the Board finds that the negative opinion of the VHA expert, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The VHA expert provided a detailed rationale for the conclusion reached. His conclusion is supported by the medical evidence of record, which includes service treatment records noting no objective findings to support the Veteran’s complaints of back pain; post-service treatment records documenting no reports of or treatment for back pain until after his work-related injuries in 1975; and findings that the Veteran’s in-service back injury was minor in nature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no competent medical opinion of record to the contrary. In addition, there is no evidence of degenerative joint disease in service or within one year thereafter. The provisions of 38 C.F.R. § 3.303(b) and 38 C.F.R. § 3.307 with regard to chronic diseases are therefore not for application. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel