Citation Nr: 18142780 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-42 119 DATE: October 16, 2018 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDING OF FACT The preponderance of the evidence is against the finding that the Veteran has a lumbar spine disorder due to a disease or injury in service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1964 to March 1966. This case is on appeal before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2018, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Since the above hearing, additional evidence has been submitted in association with a Motion to Advance this case on the docket. The Motion to Advance on the Docket is granted. The evidence associated with the Motion is not pertinent to the issue on appeal. The Veteran has not raised any specific issues with the duty to notify or the duty to assist. 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, the Veteran has not raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Veteran seeks service connection for a lumbar spine disorder, which he claims is related to an injury he suffered during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Regulations 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). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of a 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. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran traces his lumbar spine disorder to an injury he suffered in service. According to the Veteran’s account of the incident, he and several other men were loading a large, heavy, piece of equipment into the back of a cargo truck. However, as the equipment was being lifted, it began sliding backward. The other men stepped back, but the Veteran attempted to hold it. This resulted in the force of the sliding equipment pushing him backward as it fell to the ground. The Veteran claims that he was in extreme pain after this incident, which made it difficult for him to perform his duties. He alleges that he did not seek treatment from military physicians or the VA because he did not understand English all that well at the time. Instead, the Veteran visited doctors in Mexico until 1992. See June 2013 statement; see also July 2018 Board hearing. The Veteran’s service treatment records reflect complaints of “continuous lower back pain” in June 1965. However, an X-ray indicated that his lumbosacral spine was normal. Similarly, the Veteran’s February 1966 separation examination does not mention any lower back injuries or show evidence of a chronic lumbar spine disability. In October 1978, more than a decade after discharge from active duty service, the Veteran suffered a lower back injury while he was attempting to unload a roll of carpet. He sought treatment from Dr. S.Q., a private physician, who diagnosed him with an acute traumatic sprain to the lumbosacral joint complicated by a congenital malformation. X-rays showed no evidence of a fracture, and the Veteran was referred to a chiropractor. Dr. S.Q. stated that the Veteran would need to wear a brace when he returned to his job due to the nature of his work, but indicated that he did not expect any degree of permanent damage to result from this injury. In August 1992, an X-ray of the Veteran’s lumbar spine showed generalized osteoporosis. However, the vertebral body heights were preserved and the intervertebral disc spaces were maintained. Additionally, there was no evidence of spondylosis or listhesis. Another X-ray from April 1993 revealed moderate osteoporosis. However, the vertebral body heights were preserved and the intervertebral disc spaces were maintained. Additionally, there was no evidence of spondylosis or listhesis, and the spinous processes and sacroiliac joints appeared normal. An X-ray from May 2006 showed osteophytic spurring in the upper lumbar region and to a lesser extent in in the middle lumbar area; the intervertebral disc spaces were preserved and there was no evidence of a past or present fracture. In September 2008, an X-ray of the Veteran’s lumbar spine revealed mild degenerative changes and mild boney demineralization; the alignment of the spine was normal and there was no evidence of fracture or subluxation. In December 2011, the Veteran underwent a lumbar puncture operation. A treatment record from April 2013 indicates that the Veteran was prescribed hydrocodone for his lower back pain. An X-ray from May 2013 showed scalloping defects of end plates due to Schmorl’s nodes. There were also prominent degenerative osteophytes and the bones were noted to be demineralized. Lastly, the reviewing physician noted mild facet arthritis but no evidence of a spondylosis defect. A September 2013 VA examination report included a physical examination of the Veteran, recited his complaints, and recounted the medical history. The diagnosis was chronic low back strain with degenerative disc disease of the lumbar spine. The Veteran reported lower back strain since 1964, and indicated that it has gotten worse since that time. He stated that he has never had surgery, but has received injections. Attached to the report was an X-ray from the previous month revealed multilevel degenerative changes of the spine but no evidence of fractures or acute osseous abnormalities. The examiner opined that chronic strain has caused degeneration of the Veteran’s lumbar spine The Veteran underwent a second VA examination in March 2014. The examiner reviewed the claims file, including the X-ray evidence, and found that the Veteran’s lumbar spine disorder is less likely than not related to service. This is because there was no evidence of a nexus between the Veteran’s in-service complaints and his current lumbar spine disorder. The X-ray from 1965 was normal, and there was no evidence of chronic or ongoing back pain immediately following separation. There was also no evidence of chronic low back strain with degenerative disc disease in service. The examiner noted the September 2013 diagnosis of chronic low back strain with degenerative disc disease of the lumbar spine, but disagreed with that assessment. The examiner stated that low back strain does not cause or aggravate degenerative disc or joint disease because strain involves the muscles while degenerative disc and joint disease involves the bones. Additionally, degenerative disc and joint disease both result from the natural aging process. The examiner found that chronic low back strain is not listed on the February 1966 separation examination, nor is it found on the problem list supplied by the Veteran’s VA treatment providers. Rather, the Veteran’s current complaints stem from degenerative disc and joint disease, which were not diagnosed until decades after separation. A treatment record from July 2016 indicates that the Veteran was sent to aquatic therapy for eight weeks due to his persistent lower back pain. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the finding that the Veteran has a current lumbar spine disorder due to an in-service injury. The Board notes that the March 2014 VA opinion is the only medical opinion adequately addressing the alleged in-service origins of the Veteran’s lumbar spine disorder. The VA examiner found no relationship between his current lumbar spine disorder and the symptoms he reported in 1965. Rather, the VA examiner concluded that the Veteran’s lumbar spine disorder results from the natural aging process. The VA examiner had the benefit of reviewing the claims file, including the Veteran’s VA treatment records, and provided a clear basis for his medical opinion. The Board thus affords this opinion the greatest probative weight, and adopts the March 2014 VA examiner’s conclusion that the Veteran has not had a chronic lumbar spine disorder since service. The Board acknowledges the statements of the Veteran, which attribute his lumbar spine disorder to an incident that occurred in service. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinion provided by the VA examiner in March 2014 is more probative than the Veteran’s lay assertions. The VA examiner has expertise, education, and training that the Veteran is not shown to have. As such, that opinion warrants more weight. In conclusion, based on the medical evidence as well as lay testimony, the Board finds that the weight of the evidence does is against the finding that the Veteran’s lumbar spine disorder is related to active service. Although the Board acknowledges the Veteran’s statements that his lower back pain substantially limits his everyday activities, the majority of the evidence is inconsistent with these assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claim for service connection for a lumbar spine disorder is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel