Citation Nr: 18143445 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 11-32 403 DATE: October 19, 2018 ORDER Service connection for a low back disability is denied. FINDING OF FACT The Veteran’s current low back disability did not manifest in service and is otherwise unrelated to service; lumbar spine arthritis did not manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110,1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to December 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a Board hearing on his December 2011 substantive appeal, but subsequently withdrew his request in February 2012. The Board previously remanded this matter for further development in October 2013, July 2016, and September 2017, which has since been completed. The Veteran submitted additional evidence after the issuance of a supplemental statement of the case in December 2017. A waiver of agency of original jurisdiction consideration was associated with claims file, and therefore, the Board may properly consider such evidence. 38 C.F.R. § 20.1304(c). Entitlement to service connection for a low back disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that his low back disability is a result of his active service. Specifically, he asserts that he served as a stock clerk during service, which routinely required him to lift heavy objects, and that resulted in his low back disability. See July 2009 VA Form 21-526. The Veteran has current diagnoses of lumbosacral strain, degenerative disc disease (DDD) and bilateral spondylolysis of the lumbar spine. See September 2009 CAPRI records; December 2015 VA contract examination; The first and second elements for service connection have been met. Thus, the salient question before the Board is whether there is a causal relationship between the two. After a thorough review of the record, the Board finds that service connection is not warranted, for the reasons stated below. The Veteran’s entrance examination showed a normal spine upon clinical evaluation. A November 1970 periodic examination showed a normal spine on clinical evaluation. In August 1971, the Veteran was seen three times for muscle aches and general aches and pains. However, he was diagnosed with either the viral flu or mild gastroenteritis at those visits and a back condition. While stationed on the U.S.S. Ticonderoga, he seen for complaints of a cyst on his right thigh, for asthma, and for a rash, but there were no records for complaints of or treatment for a back condition. The Veteran’s separation examination showed a normal spine upon clinical evaluation. There are no treatment records within one year of service showing complaints or treatment for a low back condition. Private treatment records from Dr. Lohmeier indicate the Veteran sought treatment in March 1996 for low back tightness. A treatment note indicated that the onset of the Veteran’s low back pain was in March 1996. An April 1997 treatment record showed that his back started hurting after he got out of his pickup truck. The remaining treatment records provided by Dr. Lohmeier do not include an etiology opinion. Private treatment records between 1997 and 1998 from Dr. Resler provide a diagnosis of L-5 lumbar spondylolisthesis, but do not contain an etiology opinion. Private treatment records from Dr. DeLong show treatment for complaints of low back pain, left hip pain, and left leg pain, but a nexus opinion was not provided. Records from Dr. Norris show diagnosis and treatment of DDD of the lumbar spine. The Veteran also identified Drs.Burton, McKinney, Fenema, and Scott as providers who treated his back condition in the past. However, the RO was unsuccessful in obtaining these records after making reasonable attempts. VA treatment records show treatment for low back pain. An April 2002 physical therapy note shows the Veteran reported having back pain all his life, but pain going down his legs only for the past 2 to 3 months. The clinician noted he had posture-increased lumbar lordosis with a protruding abdomen, and anterior pelvic tilt. An April 2004 treatment record showed that he denied having back pain. An October 2007 note indicated that the Veteran hurt his low back playing golf one month earlier. In October 2009, the Veteran submitted several lay statements in support of his claim. Dr.W.E. reported he had known the Veteran since 1961 and that he began having trouble with his back following active service. E.A. reported hunting, golfing, and traveling with the Veteran and noted that he has had back and leg problems over the years. M.C. has known the Veteran for most of his life and reported witnessing the rapid deterioration in his back and legs for several years. His daughter, K.S.O., reportedly noticed the Veteran had back pain since she was a child. P.S. reported she had known the Veteran since January 1972. She witnessed the Veteran suffering from back pain since separation from service. J.S. and T.H. reported they had known the Veteran for several years and noticed back problems. Pursuant to an October 2013 Board remand, the Veteran was afforded a VA contract examination in December 2015. He reported that his symptoms began in 1972. During service, while climbing a ladder and carrying heavy helicopter parts, he fell and the parts fell on him. The examiner provided a nexus opinion with little rationale. The Board determined this decision was inadequate as the examiner failed to consider the competent lay evidence of record. The Board remanded the appeal another VA examination. In December 2016, the Veteran was given another VA examination in compliance with the Board’s remand. He reported that his condition developed during service, when he fell backwards when he was carrying parts on an aircraft carrier and landed on his back. The Veteran reported that he did not seek treatment for his back during service. The examiner provided a negative nexus opinion with a short rationale that relied on the absence of a back condition in the service treatment records and did not consider the lay contentions associated with the claims file. In September 2017, the Board remanded for an addendum opinion to again address the lay evidence of record. A VA addendum opinion was issued in October 2017. The examiner reviewed the Veteran’s claims file, a copy of the prior remand, and the lay evidence of record. The examiner opined that the Veteran’s low back disability was less likely than not incurred in or caused by service. The examiner discussed that while the service treatment records had complaints of muscle aches and pains, these records noted the aches and pains were related to viral/flu-like symptoms and not related to low back pain. Post-service treatment records were silent between the Veteran’s separation from service in December 1972 until the first time he was seen by Dr. Lohmeier in March 1996. This treatment note indicated that the onset of the Veteran’s low back symptomatology was on the treatment date. The examiner found that the evidence did not support that a low back injury occurred while on active duty nor was there evidence of symptomatology or objective findings of a diagnosis of chronic low back condition while on active duty. The medical records were silent between 1972 and 1996 without evidence of complaints or objective findings of a low back condition. This was a 24-year span without medical records documenting a low back condition. The examiner found that the lay contentions did not support a continuity of symptomatology since separation of service and instead indicated that the Veteran was able to golf, hunt, and travel. This was also supported in an October 2007 VA treatment note which indicated the Veteran reported low back pain after golfing. The Veteran has also submitted several statements in support of his claim throughout the appeals period. Of note, the Veteran asked the Board to consider the two medical entries in August 1971 during service and those when stationed on the U.S.S. Ticonderoga. The Veteran has also stated that he sought treatment between 1972 and 1996; however, those records were unattainable for review. In addition, the Veteran and his representative asked to consider the evidence of record as it was not properly reviewed and evaluated by the October 2017 VA examiner. Based on the evidence above, the Board finds that service connection is not warranted. The Board has reviewed the 3 entries dated in August 1971 during service. The first entry showed that he was seen for muscle aches. The clinician diagnosed the Veteran with viral flu. He returned the next day for complaints of muscle aches again. This time, the clinician found he had mild gastroenteritis. Two days later, he was seen for complaints of symptoms worsening with generalized aches and pains, but now with loose stools. The clinician prescribed medication and bed rest. There was no further follow-up treatment shown for the remainder of service. While stationed on the U.S.S. Ticonderoga, the Veteran was seen for a cyst, asthma, and for a rash. There were no other records indicating treatment for a back condition, to include the reported event of parts dropping on him while climbing a ladder. This was corroborated by his statement made at the December 2016 VA examination, when the Veteran reported that he did not seek treatment for a back condition during service. The Veteran’s separation examination showed a normal spine upon evaluation. There was no indication of muscle aches noted at separation. Post-service treatment records within one year after service did not show any complaints of or treatment for a low back condition. The objective medical evidence indicated that he was first seen in March 1996 by Dr. Lohmeier for complaints of lower back tightness. As lumbar spine arthritis did not manifest to a compensable degree in service or within one year from service, presumptive service connection for a chronic disease is not warranted. See 38 C.F.R. §§ 3.307, 3.309(a). In the absence of a current diagnosis of arthritis, consideration under the theory of chronicity and continuity of symptomatology is not warranted. See 38 C.F.R. § 3.303(b). Service connection for a low back disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s low back disability and in-service injury, event, or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s private treatment records did not include any opinions discussing the relationship between the current disability and his military service. The other evidence that directly addresses causal nexus is the October 2017 VA opinion. The VA examiner opined that the Veteran’s low back disability was not at least as likely as not related to an in-service injury, event, or disease, to include reports of muscle aches in service. That opinion, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, is highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent evidence to the contrary. Moreover, the October 2007 VA treatment record indicated the etiology of the Veteran’s back pain was a post-service golfing injury. The Board has considered the statements made by the Veteran, E.A., M.C., T.H., K.S.O., J.S., and P.S. However, this issue is medically complex, as the diagnosis for DDD requires knowledge of interpretation of complicated diagnostic medical testing, and the Veteran and others have not shown to have the medical expertise to offer a diagnosis or competent nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While Dr. W.E. may have the medical training to provide a diagnosis and nexus opinion, he has not provided evidence that the Veteran was treated by him, nor has he provided an adequate rationale in his supporting statement. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999). As such, the Board is unable to assign probative value to Dr. W.E.’s opinion. While the Board is sympathetic to the Veteran’s belief that the October 2017 opinion reflects that evidence was not properly reviewed and evaluated, the competent and probative evidence weighs against a finding that a medical nexus exists between his low back disability and an in-service injury, event, or disease. The Board finds the October 2017 VA opinion to be highly persuasive as the examiner reviewed the claims file, discussed the clinical findings, and supported the opinion with cogent rationale. Based on the foregoing, service connection for a low back disability is not warranted. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Tang, Associate Counsel