Citation Nr: 18144404 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-34 671 DATE: October 25, 2018 ORDER Entitlement to service connection for a low back disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a low back disorder due to a disease or injury in service, to include a July 1998 low back injury during active duty for training with the Army National Guard. CONCLUSION OF LAW The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1979 to August 1993, including service with the Army National Guard. 1. Entitlement to service connection for a low back disorder The Veteran asserts that he is entitled to service connection for a low back disorder on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran’s low back disorder did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990). The service treatment records (STRs) note that the Veteran complained of low back pain in January 1979, April 1979, March 1981, and July 1981. On the June 1992 report of medical history re-enlistment examination, the Veteran indicated that he did not have a history of or currently experience recurrent back pain. On the June 1992 re-enlistment examination, the medical provider indicated that the Veteran’s spine was normal. On the August 1993 applicant medical pre-screening for the Army National Guard, the Veteran indicated that he did not have or ever had back trouble. In July 1998, the Veteran injured his back at annual training with the Army National Guard while lifting tent poles. The medical provider indicated that the Veteran experienced a severe lumbar back strain. Private treatment records show that the Veteran was treated for a low back disorder in 2013 and underwent surgery. On the May 2014 VA examination, the examiner diagnosed the Veteran with degenerative arthritis of the spine. The examiner opined that the Veteran’s low back disorder was less likely than not incurred in or caused by service. The examiner noted that the Veteran had in-service complaints of low back pain in 1979, 1981, and 1998. The examiner also acknowledged that the Veteran’s private treatment provider indicated that he had a five percent disability for a back disorder. The examiner found that on questioning, the Veteran related his disability to a back injury from a worker’s compensation claim. The examiner reasoned that there is no documentation to show an ongoing chronic back disorder following 1998 and the Veteran reported he did not seek medical treatment for the back until 2010. Based on the foregoing, there is no evidence that the Veteran’s low back disorder was manifested in service or to a compensable degree in the first year following his separation from service. Consequently, service connection for a low back disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from the low back disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). There is also no evidence that the Veteran’s low back disorder is otherwise related to service. The Veteran’s post-service private treatment records are silent for an opinion relating his low back disorder to service. The only competent evidence in the record that addresses this question is the May 2014 VA medical opinion, which stated that the Veteran’s low back disorder was not related to his service. As there is no other evidence to the contrary, and the May 2014 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. Further, the Veteran’s own statements relating his low back disorder to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether arthritis, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, arthritis is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a low back disorder. Accordingly, it must be denied. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel