Citation Nr: 18143975 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-24 947 DATE: October 23, 2018 ORDER Entitlement to service connection for a low back disability, to include lower extremity radiculopathy, is denied. FINDING OF FACT The Veteran’s low back disability was not incurred in service, arthritis of the low back was not manifested to a compensable degree within one year of separation from service, and the low back disability is not otherwise caused by service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability, to include lower extremity radiculopathy, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 2006 to May 2010. The Veteran served as a U.S. Army medical specialist with service in Southwest Asia. She was awarded the Combat Medical Badge. The Board is aware of the Court’s instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not “merely for the purposes of rewriting the opinion so that it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision.” The Board’s analysis has been undertaken with consideration of Fletcher. 1. Entitlement to service connection for a low back disability, to include lower extremity radiculopathy Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). That a disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for diseases listed as chronic. 38 C.F.R. § 3.303(b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir.2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As discussed above, the Veteran contends that she incurred a low back disability in service or that such disability was otherwise related to service. During service, in October 2009, the Veteran reported non-radiating low back pain. There was tenderness to palpation of the thoracolumbar spine and limited range of motion. The assessment was thoracic and lumbar back strain. In a February 2010 Report of Medical Examination, examination of the spine was normal. In a contemporaneous Report of Medical History, the Veteran denied a history of recurrent back pain or any back problem. She also denied a history of numbness or tingling. In her April 2010 Pre-Discharge Compensation Claim, the Veteran reported that she had back pain. Specifically, she noted that when “staying in one position for too long and my joints get stiff.” After service, in December 2012 the Veteran sought treatment in the emergency room for lower lumbar area pain and lower abdominal pain for the previous 4 days after carrying a grocery bag. At that time, the Veteran specifically denied a history of chronic low back pain. Following examination, the assessments did not include a low back diagnosis. Instead, the assessments were pelvic inflammatory disease (PID), urinary tract infection (UTI), and intrauterine contraceptive device (IUD). The Veteran was afforded a VA examination for her back in May 2015. The examiner noted review of the electronic claims file and diagnosed thoracic strain and mild L4-L5 and L5-S1 degenerative disc disease with intermittent right lower extremity radiculopathy flare-ups. The Veteran reported increasing lower back flare-ups with stiffness and “cramp” in the mid-back. She had problems with extended sitting or standing. X-rays showed evidence of arthritis. Following examination, the examiner concluded that it was less likely than not that the back disabilities were incurred in or caused by service. The rationale noted that the Veteran was seen in October 2009 for low back pain without radiation and was diagnosed with thoracic and lumbar back strain. Thereafter, the February 2010 examination of the spine was silent for any thoracic or lumbar spine disability or related problems. As such, the examiner concluded that the thoracic and lumbar back strains resolved without residuals and that the current disabilities were unrelated to service. In September 2015, the Veteran had intermittent “pulsating” pain in the left lower back into the left lower quadrant for the previous 2 weeks. The diagnosis was a severe kidney infection (pyelonephritis) and an obstructing renal stone with mild hydronephrosis on the left. In November 2015, the Veteran described upper back and bilateral shoulder pain associated with enlarged breasts. In December 2015, the Veteran was evaluated for a breast reduction. The Veteran complained of low back pain that she had previously treated with NSAIDs. The Veteran had difficulty exercising due to her breast size. Early in May 2016, the Veteran reported a history of low back pain that she had noticed for about 2 months, but that had worsened in the past 4 to 7 days. Later in May 2016 the Veteran reported ongoing back pain with onset of pain more than 5 years previously, shortly after separation from service, but that the pain had worsened in the previous 2 months. The diagnosis was lumbar pain with evidence of bulging discs in L4-L5 and L5-S1 with no evidence of herniation or cauda equina syndrome. Thus, the Veteran has current low back disabilities. The critical question, therefore, is whether such disabilities were incurred in service, were manifest to a compensable degree within one year of separation from service, or are otherwise caused by active service. Based on the evidence of record, the Board concludes that they were not. In reaching that determination, the Board finds the May 2015 VA examination report of significant probative value. The examiner’s opinions were based on an interview of the Veteran, her reported medical history, review of the medical evidence of record (including x-rays), and physical examination. Further, a complete and thorough rationale was provided for the opinions rendered. Specifically, the examiner concluded that it was less likely than not that the Veteran’s low back disabilities were incurred in or caused by service. The rationale noted the Veteran’s normal examination in February 2010 and the absence of any reports of low back problems, which indicated that the in-service thoracic and lumbar back strains had resolved without residuals. The examiner’s conclusions are fully explained and consistent with the evidence of record. The Board has considered the concern raised in the March 2018 Joint Motion for Partial Remand (JMR) regarding the May 2015 VA examination report. The JMR indicated that it was unclear as to whether the May 2015 VA examiner was aware of a 2012 emergency department visit for lower back pain that began 4 days earlier in light of the report’s indication that “[t]oday’s findings of thoracic strain with muscle spasm and mild L4-L5 and L5-S1 [degenerative disc disease] with intermittent] right lower extremity] radiculopathy flare ups found 5 years after military discharge is less likely than not (less than 50 percent or greater probability) incurred in or caused by the military during service.” In response, the Board does not see how the December 2012 treatment would impact the foregoing statement. The December 2012 complaint of low back pain did not result in a diagnosis of either thoracic strain with muscle spasm or mild L4-L5 and L5-S1 degenerative disc disease with intermittent right lower extremity radiculopathy. Rather, the record shows that the low back pain was reportedly onset four days earlier and attributed to infections as noted above. The May 2015 examiner’s statement that such diagnoses were first made 5 years after service is accurate based on the evidence of record. The examiner considered the Veteran’s complaints of low back pain, but found no basis based on such complaints to warrant a diagnosis of either thoracic strain with muscle spasm or mild L4-L5 and L5-S1 degenerative disc disease with intermittent right lower extremity radiculopathy (other than the diagnosis of thoracic and lumbar strain diagnosed in October 2009 in service that fully resolved). Such disabilities were not diagnosed after service until the 2015 VA examination and such a finding was accurately noted in the examination report. In any case, the Board finds it extremely significant that the December 2012 report only noted a 4-day history of low back pain and the Veteran’s explicit denial of any history of chronic low back pain, which fails to suggest any relationship between the post-service back pain and her active service. As such, the Board does not find that the foregoing argument renders the May 2015 VA examination report inadequate. The Board also has considered whether service connection would be warranted pursuant to the provisions of 38 C.F.R. § 3.303(b) (2018), based on chronicity and continuity. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board recognizes that arthritis is a chronic disease listed under 38 C.F.R. § 3.309(a). That said, 38 C.F.R. § 3.303(b) clearly indicates that, “This rule does not mean that any manifestation of joint pain... in service will permit service connection of arthritis... first shown as a clearcut clinical entity, at some later date. 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.’“ In this case, the Veteran specifically denied a history of recurrent back pain in February 2010, which clearly indicates that there was not a continuity of back problems following the October 2009 thoracic and lumbar strains. In December 2012, the Veteran again denied a history of chronic back pain. Finally, in May 2016, the Veteran reported onset of lower back and left leg pain with conflicting times of onset, but in either case after separation from service. As such, service connection based on the provisions of 38 C.F.R. § 3.303(b) is not warranted. The Board also acknowledges that entitlement to service connection might be warranted under the provisions of 38 C.F.R. §§ 3.307, 3.309 based on the development of arthritis of the spine within one year of separation from service. The Board recognizes that the Veteran has reported the onset of low back pain shortly after separation from service, which suggests the onset of symptomatology within one year of separation from service. That said, the Veteran has made conflicting and contradictory statements regarding her chronic low back pain onset. In early May 2016, the Veteran reported a 2-month history of low back pain, but later in May 2016 the Veteran stated that the low back pain began about 5 years previously, shortly after separation from service. Such a statement, however, is contradicted by her December 2012 explicit denial of a history of chronic low back pain. In light of the Veteran’s contradictory lay statements regarding the timing of onset of her chronic low back pain and the absence of any medical evidence to support a finding of arthritis of the lumbosacral spine within one year of separation from service, the Board finds no basis for granting entitlement to a low back disability based on the provisions of 38 C.F.R. §§ 3.307 and 3.309. Finally, the Board has considered the Veteran’s general assertions that her current low back and lower extremity problems are due to service. In that regard, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Despite the Veteran’s medical training as a junior field combat medic and brief experience after service as a nurse’s aide, she does not have the level of medical training and expertise to provide competent evidence in the complex diagnosis of low back and lower extremity disabilities and linking the etiology of such disabilities to service (particularly in the absence of a continuity of symptoms). Thus, the Board concludes that in this case her statements regarding any such diagnoses or link are not competent evidence. As such, the Board affords significantly greater probative weight to the conclusions of the May 2015 VA examiner. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (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). (Continued on the next page)   In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel