Citation Nr: 18141654 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 09-47 465 DATE: October 11, 2018 ORDER Entitlement to service connection for a low back disability, to include degenerative arthritis and degenerative disc disease, is denied. FINDING OF FACT A low back disability did not have its onset in service, arthritis was not manifested within one year following service discharge, and a low back disability is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability, to include degenerative arthritis and degenerative disc disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from December 1986 until November 1989 and again from December 1990 until July 1991. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2007 rating decision by the Department of Veteran’s Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Veteran filed a notice of disagreement in December 2007 and was provided with a statement of the case in November 2009. The Veteran perfected her appeal with a December 2009 VA Form 9. The Veteran received a hearing in this case in August 2014 from a Veterans Law Judge who is now retired. The Veteran was given the opportunity to receive a new Board hearing, but declined. In February 2017, this case was remanded by the Board to obtain VA examinations for the Veteran’s left knee, right knee, and low back disabilities. Following VA examination, an October 2017 rating decision granted service connection for left and right knee disabilities. This is a full grant of the benefits sought on appeal pertaining to the right and left knees. Accordingly, only the low back disability claim is currently before the Board. The Veteran was provided with a supplemental statement of the case regarding her low back disability claim in October 2017. Service Connection—Generally Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For certain chronic disorders, including arthritis, service connection may be granted on a presumptive basis if the disease manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112, 1137. For chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, a showing of continuity of symptoms after service is generally required in order to establish entitlement to service connection. Id. Even where service connection cannot be presumed, service connection may still be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Entitlement to service connection for a low back disability The Veteran claims that her current low back disability is related to an injury she sustained while in service. As to a current disability, the Veteran has been diagnosed with both degenerative arthritis of the lumbar spine and degenerative disc disease of the lumbar spine. Thus, the Veteran meets the first element of a claim for service connection. As to an in-service disease or injury, July 1989 service treatment records document that the Veteran suffered a low back injury while playing softball. These records show that the Veteran was placed on bedrest for a sprain of the lower back, which resolved well with residual mild occasional aching. In an October 1989 Report of Medical History, the Veteran checked “Yes” to the question “Have you ever had or have you now recurrent back pain.” Accordingly, there is evidence of a disease or injury in service. Where the Veteran’s claim for service connection fails is evidence of a nexus between the current disability and service. For example, in a December 1990 Report of Medical History, the Veteran checked, “No” to ever having or having then current back pain. She noted she had been treated for her back in 1989, but denied recurrent back pain at that time. Additionally, a June 1991 Report of Medical Examination shows that clinical evaluation of the spine and other musculoskeletal system was normal. In the June 1991 Report of Medical History, the Veteran again checked “No” to the question, “Have you ever had or have you now” recurrent back pain and documented her past treatment for his low back. The Veteran wrote in the June 1991 Report of Medical History that she was in “excellent” health. This evidence tends to show that the 1989 injury did not cause a chronic low back disability, as the Veteran subsequently denied recurrent back pain in 1990 and 1991, which is one and two years after the injury, and the June 1991 separation examination showed a normal clinical evaluation of the spine. The Veteran was afforded a VA examination in June 2015. The examiner physically examined the Veteran, reviewed the Veteran’s file, noted that the Veteran incurred a back injury during service, and that the Veteran was currently suffering from significant subjective pain and discomfort in her back. During this exam, the Veteran also provided a statement indicating that she was never able to return to full duty after suffering a lower back injury during service, and that the pain from that injury never resolved. Based on a review of the Veteran’s file and an examination of the Veteran, the examiner concluded that he was unable to find documentation to support either the chronicity or continuity of a back disability since the Veteran left active service. The examiner opined that the Veteran’s current disability is more likely related to age-related degeneration and is less likely than not to have been incurred in or caused by the claimed in-service injury. This is evidence against a finding of a relationship between the current low back disability and service. The Veteran was afforded another VA examination in October 2017. The examiner physically examined the Veteran, reviewed the Veteran’s file, and noted that the Veteran had a current diagnosis of degenerative arthritis of the spine. The examiner noted that the Veteran used both a cane and a walker when she had increased low back pain. The examiner concluded that during service, the Veteran suffered an acute low back condition that had resolved. The examiner further concluded that there was no continuity of care for the Veteran’s back condition since the Veteran left active service, and that the Veteran’s condition was less likely than not related to active service. This is further evidence against a finding of a relationship between the current low back disability and service. Two medical professionals have determined that the current low back disability is not related to the 1989 injury the Veteran sustained in service, which is supported by the contemporaneous records, as the Veteran denied recurrent back pain in 1990 and 1991, and clinical evaluation of the spine in June 1991 was normal. The Board accords these post-service examinations high probative value because both examiners had reviewed the file, examined the Veteran, and explained why they did not believe that there was a relationship between the current low back disability and service. In the February 2017 remand, the Board had found the June 2015 examination to be inadequate regarding the medical opinion provided by the examiner, as there was an “inadequate rationale for the conclusion reached.” The Board had an issue with the examiner not accepting the Veteran’s allegation of chronic low back pain since the 1989 injury. Here, the Board finds that the Veteran’s specific denials of recurrent back pain in 1990 and 1991 allow for the June 2015 examiner to find that there was a lack of continuity of symptomatology following the 1989 injury. Thus, the examiner relied upon facts that the Board accepts as true. Thus, the current Board finds that the June 2015 examination is adequate. The Veteran has stated that she has experienced continuous back pain since the back injury incurred while lifting a heavy transformer during active service. The Veteran’s parents have also stated that the Veteran has experienced continuous back pain since she injured her back during active service. However, these assertions are refuted by the Veteran’s own reports in 1990 and 1991 of not having recurrent back pain, but noting the 1989 injury, and clinical evaluation of her spine in 1991 was normal. What this shows is that the Veteran thought about her 1989 back injury but specifically denied experiencing recurrent back pain. The Board accords high probative value to statements the Veteran made contemporaneously with service. Additionally, she attested to the truth of her in-service statements when she signed the 1990 and 1991 Reports of Medical History. The Board acknowledges the Veteran’s August 2014 hearing testimony that she was hospitalized for one week after injuring her back during service and that, although she cannot recall the names of any of the treatment providers, she had sought chiropractic treatment on many occasions for back pain since leaving active service. However, again, other evidence of record contradicts this assertion, as the Veteran checked “No” to the question “Have you ever had or have you now” recurrent back pain in December 1990 and again in June 1991. Post-service private medical records associated with the file are dated as early as 1997, and the first documentation of low back pain is in 2001. The Board finds that the allegations of continuity of symptomatology are not supported by the contemporaneous records. Notably, the only evidence that the Veteran’s current low back disability is related to her in-service injury are lay statements. The Veteran and her parents are competent to report that the Veteran is experiencing back pain. However, to the extent that the statements assert a nexus between the Veteran’s current low back disability and her in-service back injury, such statements are afforded little probative value, as the Veteran, nor her parents, are not shown to possess the expertise necessary to render a nexus opinion regarding the etiology of the Veteran’s low back disability. Furthermore, the Veteran’s statements that her low back disability is related to her in-service injury are outweighed by the June 2015 and October 2017 opinions by VA medical professionals, who concluded that the Veteran’s current low back disability was less likely than not related to active service. Regarding presumptive service connection, there is no competent evidence of record that arthritis manifested to a compensable degree within one year of the Veteran’s discharge from service. See 38 C.F.R. §§ 3.307(a), 3.309(a). In fact, an October 2001 x-ray of the lumbar spine was negative, which means that arthritis was diagnosed more than 10 years following service discharge. As such, service connection is not warranted based on a presumptive basis. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a low back disability, to include degenerative arthritis and degenerative disc disease. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Caruso, Associate Counsel