Citation Nr: 18142507 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-46 724 DATE: October 16, 2018 ORDER Entitlement to service connection for degenerative disk and joint disease, status post lumbar fusion is denied. FINDING OF FACT The Veteran’s degenerative disk and joint disease, status post lumbar fusion did not originate in service or within one year of discharge therefrom, and is not otherwise etiologically related to service CONCLUSION OF LAW The criteria for service connection for degenerative disk and joint disease, status post lumbar fusion have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1978 to August 1992 and April 1990 and August 1992. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a September 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran was scheduled for a Board video conference hearing on November 15, 2016. However, the Veteran failed to attend the scheduled hearing. The Veteran was notified in September and November 2016 of his upcoming Board hearing. The notice was sent to his then address of record, and was not returned as undeliverable. He thereafter did not attempt to contact the Board prior to the missed hearing to clarify his desire for a different type of hearing. The record does not establish good cause for his failure to report for the November 2016 hearing, and the Board will not reschedule him for another Board hearing. Neither the Veteran nor his representative has raised any issues with respect to VA’s duty to notify or assist. Under 38 U.S.C. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. The record indicates that the Veteran filed for workers’ compensation claims for a back injury and records of this claim and related treatment is not associated with the file. Because the Veteran’s low back disability is being denied because no medical nexus relates his current condition to his service, the Board concludes that the record does not establish a reasonable possibility that the workers’ compensation records could provide evidence necessary to substantiate his claim. Being that the alleged workplace injury took place in 1997, it is unlikely that the 1997 workers’ compensation records would include a medical nexus opinion relating his back condition to his active service, rather than to his employment. As such, VA does not need to attempt to obtain those records. All other records, to include service treatment records, VA treatment records, and private medical treatment records identified by the Veteran, have been obtained. Entitlement to service connection for degenerative disk and joint disease, status post lumbar fusion (low back disability). The Veteran seeks service connection for degenerative disk and joint disease, status post lumbar fusion (low back disability). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption for certain chronic diseases, to include sensorineural hearing loss and arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a 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.” If there is not sufficient evidence that the currently diagnosed chronic disease was chronic in service or within a presumptive period, a veteran may still be entitled to presumptive service connection if continuity of symptomatology is demonstrated. 38 C.F.R. § 3.303 (b); See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a). As to the first element of service connection, current disability, the record indicates that the Veteran has a diagnosis of degenerative disc and joint disease, status post lumbar fusion. See August 2013 VA examination. Therefore, this element is met. As to the second element for direct service connection, in-service incurrence or aggravation of a disease or injury, the Veteran reported he initially injured his back in 1979 or 1980 when he was pushing large tents off a truck. Review of the Veteran’s service treatment records revealed that the Veteran was diagnosed with a low back muscle strain and treated with medication and a limited duty profile in 1984. In February 1992, the Veteran reported low back pain after doing yard work. The medical treatment notes provided that the Veteran has reported intermittent of low back pain with no acute episodes for nine years. The Veteran was again diagnosed with an acute low back strain and prescribed physical therapy and pain medication. There is no record of a physical therapy consultation, recheck, and further notations of low back pain in later medical consultations in 1992. Thus, the evidence establishes that the Veteran has a current disability and an-in-service injury. The remaining and dispositive question is whether the claimed disability is related to service. The Veteran’s private treatment records detail ongoing complaints of low back pain. An May 2004 private treatment record provides that the Veteran reported left sided low back pain that had its onset in 1997 following a lifting injury at work. The 2004 MRI revealed disc problems. To that end, the Veteran underwent a lumbar decompression and stabilization L3-5 operation in June 2004. The Veteran was afforded a VA examination in August 2013 to determine the nature and etiology of his claimed low back disability. The Veteran opined that the claimed condition was less likely than not incurred in or caused by the Veteran’s claimed in-service injury, event, or illness. The examiner noted that the Veteran suffered low back muscle strains in 1984 and April 1992 with intermittent reports of low back pain during military service. The examiner noted that after April 1992, the Veteran’s service treatment records were negative for any complaints of treatment or complaints regarding the Veteran’s low back. Thus, the examiner concluded that there was no conclusive evidence that the Veteran had a chronic back condition during service, however there is evidence that the Veteran had a self-limiting condition. The Veteran did not recall any post-service back injury. However, the examiner noted that the Veteran’s private medical treatment record detailed left-sided back pain which radiated to his leg following a 1997 work injury, in which the Veteran stated had its onset in 1996 or 1997. The examiner opined that evidence shows that the Veteran shows that the Veteran did not have a chronic back condition on discharge from service, but sustained a serious back injury following service. Moreover, the Veteran’s current low back disability is more likely a residual of his post-service injury. In this case, as to the issue of whether the Veteran’s low back disability is related to his military service, the Board finds that the August 2013 is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, and physical evaluation of the Veteran. Furthermore, the August 2013 examiner provided a complete and thorough rationale in support of his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Regarding the presumption in favor of chronic diseases and the continuity of symptomatology, the Board notes that the Veteran has been diagnosed with a back disability. For VA purposes, diagnosis of degenerative disc and joint disease is a chronic disease, thus warranting consideration under 38 C.F.R. § 3.309(a). However, in order for the presumption under 38 C.F.R. § 3.309 to apply the disability must manifest to a compensable degree within one year of discharge from service. However, in this case it appears that the earliest the Veteran sought medical treatment related to his low back disability was in 2004 following a 1997 work place injury, when viewing the evidence in the most favorable light to the Veteran. In any case, the objective medical evidence indicates that the Veteran’s low back disability did not manifest to a compensable degree within one year of discharge from service. Since the Veteran’s low back disability loss did not manifest to a compensable degree within one year of discharge from service and there is no evidence of a chronic disability in service, the presumption in favor of chronic diseases is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The Board acknowledges the Veteran’s statement concerning his low back disability. In this regard, the Veteran is competent to report the symptoms that Veteran experienced and history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). However, as a lay person, the Veteran has not been shown to be capable of making medical conclusions, especially as to a complex medical opinion regarding the etiology of degenerative disc and joint disease. Given his lack of demonstrated medical expertise, the Board finds that the opinion of the August 2013 VA examiner, a medical professional, to be the most probative evidence of record as to the current nature and etiology of his claimed low back disability. The Board acknowledges the Veteran’s claim that he did not suffer a post-service injury to his back. However, the Board notes that the objective medical evidence conflicts with that contention. The Veteran’s private treatment records, in which highlight a workplace injury to the Veteran’s back due to lifting and the Veteran identifying his onset of back pain in about 1997. Moreover, the August 2013 VA examiner also found the that objective medical evidence was more credible than the Veteran’s contention that he did not suffer a post-service back injury. The Board agrees and finds that the Veteran’s statement regarding a lack of post-service injury to be of limited probative value due to the conflict between the contention and the objective medical evidence. The objective medical evidence ultimately outweighs the Veteran’s lay contentions that his disability is related to service. See Jandreau, 492 F.3d at 1372. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered an illness (bronchial asthma) was not competent evidence because matter required medical expertise). Although the Veteran has established a current disability, the preponderance of the evidence weighs against finding that the Veteran’s for degenerative disk and joint disease, status post lumbar fusion is causally related to his service, or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 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); 38 C.F.R. § 3.102. For these reasons, service connection for degenerative disk and joint disease, status post lumbar fusion will therefore be denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel