Citation Nr: 18144000 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-11 151 DATE: October 22, 2018 ORDER Entitlement to service connection for low back disability is denied. FINDING OF FACT A causal relationship between any current lower back disability and an in-service incurrence has not been established. The preponderance of evidence is against a finding that any diagnosed back disability is etiologically related to any incident or injury incurred during active service. CONCLUSION OF LAW The criteria for service connection for lower back disability, to include degenerative or bulging discs, have not been met. 38 U.S.C. 1131, 5103, 5103A, 5107; 38 C.F.R. 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from September 1963 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.30. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. 1113(b); 38 C.F.R. 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. VA is to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. 1154(a). Medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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 (1997). Low Back Disability The Veteran contends that a current back disability stems from a low back injury that he sustained during service. In a February 2016 statement, the Veteran expressed concern over the previous review of evidence and the subsequent rating decisions. The Board has conducted a review of the entire claims file without reliance on prior decisions as the Board adjudicates claims de novo. The Veteran’s September 1963 service entrance examination was normal with no evidence of abnormality. The Veteran’s spine and other musculoskeletal examination was found to be normal. The Veteran’s service treatment records show treatment for lumbar back pain in May 1969 due to an incident of heavy lifting. The record indicates no trauma or underlying pathology. An x-ray was not ordered and the back injury was treated symptomatically. The Veteran’s service separation examination in July 1969 was normal and indicates no sign of any back disability. The Veteran’s spine and other musculoskeletal examination was found to be normal. The Veteran did not require additional treatment for back issues until July 1974, where the Veteran was hospitalized in a private healthcare facility for acute lumbar disc syndrome. The record from that treatment does not address the existence or non-existence of any prior back problems. In August 1990, the Veteran was seen for back problems at a private facility, and reported a history of back problems 16 and 18 years prior. In May 1998, private treatment records show that the Veteran indicated being treated for back pain since age 18. In March 2002, during an examination at a private treatment facility, the Veteran reported chronic back pain for the past 15 to 20 years. Private facility treatment records from August 2011, show that the Veteran reported a 48-year history of low back pain, and indicated that his back “goes out” about once a year. Following VA examination in January 2013, the VA examiner opined that current disability was less likely than not incurred or caused by the in-service injury. The examiner noted that the Veteran had a normal physical examination upon service separation in 1969. The examiner noted that the earliest available evidence of treatment for the back was in 2002 and there was no evidence of continuing treatment for the back since service. After that examination, the Veteran submitted additional treatment records. Therefore, an additional opinion was requested in January 2014. Following review of the file, the 2014 examiner opined that the claimed back disability was less likely than not incurred in or caused by the claimed in service injury, event or illness. The doctor provided the following rationale that the service medical records showed that the back strain was self-limited, the separation examination was normal, and the first documented care for low back pain was nine years following separation from service. In support of an appeal, the Veteran submitted statements noting that the 2014 VA examiner was incorrect, as the first treatment for back pain subsequent to service occurred in 1974, approximately five years after service. In support of the appeal, an additional VA examination was requested, which the Veteran attended in September 2015. Following that examination and review of the file, the examiner opined that it was less likely than not that the current back disability was incurred in or caused by service. The examiner noted that although the condition in service was more likely than not due to heavy lifting, there was no specific inciting event while in service to support an injury incurred while in service. Service records from May 1969 reported a back strain for which the Veterans was treated symptomatically. Furthermore, the Veteran’s exit physical in July 1969, had no sign of any back disability. The Veteran did not require back treatment until 1974. The September 2015 examiner indicated that it was more likely that the Veteran had a strain in 1969 which resolved and that the subsequent and current back conditions were unrelated. Service connection may be established for a disability which began in service or was caused by some event or experience in service. While the service medical records show complaints, treatment, or a diagnosis similar to that claimed, the medical evidence supports the conclusion that a persistent or chronic disability was not present in service. The record shows that the Veteran has a lengthy history of back problems and the Board does not minimize the Veteran’s history of back treatment. The Board acknowledges the Veteran's contention that his back disability is related to an injury in-service. The Veteran's statements are considered lay evidence. The lay statements describing the Veteran's low back pain are credible. The Board has considered the Veteran's lay statements. However, while the Veteran is competent to report subjective symptoms, such as pain, he is not competent to provide a medical determination that a back disability was etiologically related to an in-service injury or event. There are different types of back disabilities and the Veteran, as a lay person, does not have the training to identify the type of back problems present in service and after service, or to provide an etiological opinion regarding the causation of a current back disability. This matter is not one of lay observation but rather can only be established through objective clinical testing or observations. The Veteran is not shown to have the medical training or knowledge to provide an opinion relating a back disability to service. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993). The September 2015 VA examiner opined that it was less likely than not that the Veteran's lower back disability was related to active service. The Board finds the September 2015 VA examiner's opinion to be more probative than the Veteran's assertions. The Board finds that the opinion of the September 2015 VA examiner is highly probative because it was supported by detailed rationale and provided by a trained medical professional, and also considered the available evidence of record. The VA examiner specifically identified and discussed the Veteran's contentions and theory concerning service and his disability. The Veteran has not shown that he has specific expertise regarding pathology of orthopedic diseases and disabilities. Accordingly, the September 2015 VA opinion is found to carry significant weight and the most persuasive evidence of record. The Veteran has not submitted any contrary competent medical evidence suggesting that any current low back disability is related to service or complaints of back pain during service. While the Veteran alleges a continuity of symptomatology, a VA examiner reviewed the record, noted the five year time period after service before additional treatment, and found that the back issues subsequent to service and at present were less likely than not related to service. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding of a causal connection between the Veteran's service and the claimed disability. The Board finds that the September 2015 VA examiner's opinion is the most persuasive evidence in this case as the lay opinions are not competent to opine as to the medical issue of causation. The Veteran has not submitted any medical evidence to support a finding that a current disability is related to service. The most persuasive evidence indicates that the back strain that occurred in-service in 1969 was resolved in full and is unrelated to a current back disability. The evidence does not show that arthritis developed within one year of separation from service or any continuity of symptomatology of arthritis of the back since service, as there was a gap in treatment and complaint following service. Therefore, service connection based on continuity of symptomatology or a presumption of service connection must be denied. The Board is appreciative of the Veteran's faithful and honorable service to our country. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, because the preponderance of the evidence is against the claim for service connection for a low back disability, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk