Citation Nr: 18141088 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 14-34 894 DATE: October 9, 2018 ORDER Service connection for degenerative disc disease of the lower back (also claimed as osteoarthritis of the spine) is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran’s degenerative disc disease of the lower back (also claimed as osteoarthritis of the spine) had its onset during active duty service, manifested within one year of separation from service, or was otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative disc disease of the lower back (also claimed as osteoarthritis of the spine) has not been met. 38 U.S.C. §§ 1101, 1112, 1113, 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 Veteran served on active duty in the United States Air Force from August 1969 to August 1973 and was awarded with a National Defense Service Medal. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. Jurisdiction of the appeal was subsequently transferred to the Muskogee, Oklahoma, RO. Duty to notify and assist. Pursuant to the Veterans Claims Assistance Act (VCAA), the VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative have raised any issues with the duty to notify. 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). As to the VA’s duty to assist, the Veteran was afforded a VA examination in 2010 regarding his claim for entitlement to nonservice-connected pension. In that VA examination he was diagnosed with degenerative disc disorder of the cervical and lumbar spine, hypothyroidism, and ventral hernias. The Veteran was scheduled to undergo a VA examination on Monday, August 12, 2013 regarding his service connection claim; however, he failed to report for the examination. The Veteran wrote a note to the RO that he missed his examination because his glasses were lost when he received his notice of the VA examination causing him to be unable to read it, as well as that he “couldn’t get V.T.S. except on Thursdays.” The Veteran, through counsel, wrote a letter to the RO dated August 19, 2013, requesting that the examination be rescheduled. The RO noted in its Statement of Case that it declined the Veteran’s request to reschedule the examination because after review of his service treatment records (STRs) it was determined that a VA examination was not necessary for there was no evidence of an injury or condition of the lower back in service. In the September 2018 Information Hearing Presentation (IHP), the Veteran asserted, through his representative, that the VA failed in its duty to assist by not providing him with an adequate medical opinion in order to evaluate his disabilities in regards to his claim for service connection. The Board notes that the VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability; but (4) there is insufficient competent medical evidence in the file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the standards of McLendon are not met as the evidence of record fails to indicate that the Veteran’s degenerative disc disease of the lower back had onset in service or is otherwise related thereto. The Veteran’s STRs do not document any findings related to any complaints, treatment, or diagnosis for any back problems. Thus, the Board finds that the VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. Entitlement to service connection for degenerative disc disease of the lower back (also claimed as osteoarthritis of the spine). The Veteran is seeking service connection for degenerative disc disease of the lower back (also claimed as osteoarthritis of the spine), which he alleges is due to sitting in a chair for four years while in the military. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vt. App. 309 (1993). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one (1) year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is a required 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 entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. 38 C.F.R. § 3.303(b). Continuity of symptoms may be established if a claimant can demonstrate: (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s STRs indicate that the Veteran did not have any injuries, complaints or symptoms associated with his back during his time in the military. The July 1969 entrance examination noted that the Veteran’s spine was normal and the Veteran self-reported that he did not have any back trouble of any kind. His July 1973 separation exam had no complaints, reports, or symptoms regarding his back and the examiner once again found the Veteran’s spine was normal. In November 2009, the Veteran was diagnosed in a private medical examination with severe degenerative disc disease in the cervical and lumbar spine with radiculopathy symptoms in the arms and legs. The examiner described the severity of the condition as late stage degenerative arthritis of the spine. No opinion was given as to the nature and etiology of the Veteran’s degenerative disc disease. In July 2010, the Veteran was diagnosed in a VA examination with degenerative disc disease of the lumbar and cervical spine without radiculopathy in the lower and upper extremities, hypothyroidism, and ventral hernias. The examination report noted that the Veteran stated that he first learned of his degenerative disc disease in his lumbar spine in 2000 after a car accident that broke his leg. No opinion was given from the examiner as to whether it was at least as likely as not that any degenerative disc disease was related to service or any event, injury, or disease during service. The Board finds that there is no link between the Veteran’s active service and his degenerative disc disease of the lower back. The Veteran’s 1973 separation examination did not report any complaints of back pain or make any findings of such conditions being present. Furthermore, the Veteran did not make continued complaints of back pain or disability within a year of his separation from service. The first documented evidence of record of his degenerative disc disease was in his 2009 private medical examination, almost 36 years after his separation from service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Additionally, there is no medical evidence of record, including the Veteran’s own statements, that he was experiencing any continuity of symptomology for his degenerative disc disability since his separation from service. It is clear from the evidence of record that no demonstrated back disability or injury was noted during service and no continuity of such symptomology was evidenced post-service. Lastly, the Board notes that the Veteran has not identified, and no such record has been indicated to be in evidence, the purported link between the Veteran’s degenerative disc disease and his military service. The Board has considered the Veteran’s lay statements as well as the academic work the Veteran submitted regarding musculoskeletal injuries in the military training environment. While the Veteran is competent to describe the observable symptoms of degenerative disc disease, such as pain, he is not competent to opine as to such a condition’s etiology, as he has not been shown to possess the requisite training or other credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay opinion does not constitute competent medical evidence and lacks probative value. As for the submitted academic work, the Board finds that it also lacks probative value. A medical article "can provide important support when combined with an opinion of a medical professional" if it discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality." Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998); Mattern v. West, 12 Vet. App. 222 (1999). This situation does not exist here. The article submitted does not address the Veteran's specifics. It also was not used in support of a medical opinion. The work in the article focuses on risk factors in training-related injuries that infantry and combat trainees are receptive to due to their higher level of physical exertion and fitness. According to the Veteran’s DD-214, he was an electrical mechanic in the United States Air Force (not infantry or combat related) and according to the Veteran’s own statements he “hardly did anything in the Air Force except sit in chairs and go on breaks.” See July 2014 Veteran’s written correspondence. In conclusion, the claim does not contain competent and credible evidence that the Veteran’s degenerative disc disease is related to service. Accordingly, as the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt-rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Robinson, Associate Counsel