Citation Nr: 18145555 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 18-27 772 DATE: October 29, 2018 ORDER Service connection for a back disorder is denied. FINDING OF FACT The Veteran’s back disorder was not shown in service or for many years thereafter, and is not otherwise related to active duty service. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1953 to November 1955. 1. Entitlement to service connection for a back disorder The Veteran asserts that his back disorder was incurred in or is related to his active duty service. Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. 1112, 1113; 38 C.F.R. 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. 3.309(a). See 38 C.F.R. 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. 3.303(a). As a preliminary matter, the Board notes that in a September 2018 statement, the Veteran asserted that he experienced back pain prior to service. It is well-established that a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the disease or injury existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Here, the Board concludes that despite the Veteran’s contention in the September 2018 statement, no back disorder was noted upon the Veteran’s entry into service. Specifically, the report from the April 1953 entrance examination reflects that the Veteran’s spine was “normal” and the examining physician did not indicate or otherwise note that the Veteran had any sign, symptoms, or a diagnosis of a back disorder. Accordingly, the presumption of soundness applies. Next, based upon the evidence of record, the Board concludes that although the Veteran has a current diagnosis of a back disorder, the preponderance of the evidence weighs against finding that his back disorder began during service, or is otherwise etiologically to service. 38 U.S.C. 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. 3.303(a), (d), 3.304, 3.307, 3.309. Initially, the service treatment records fail to establish that the Veteran’s back disorder was incurred in or is related to service. Although the July 1955 and August 1955 service treatment records reflect that the Veteran sustained muscle strains in his back, those injuries were apparently temporary in nature. Moreover, it does not appear that such injuries were chronic in nature, as there are no complaints after this time. Importantly, the report from the November 1955 separation examination reflects that the Veteran’s spine was “normal.” The examining physician also did not document any complaints regarding a back disorder, any symptoms of a back disorder, or diagnose a back disorder in the November 1955 separation examination report. Similarly, in the November 1955 report of medical history, the Veteran did not report any arthritis, bone, joint, or other deformity, lameness, or any symptoms related to a back disorder and described his health as “good.” The post-service clinical evidence also fails to establish relationship between the Veteran’s back disorder and his active duty service. Although the Veteran’s post-service treatment records include statements to his medical providers regarding symptoms of back pain since service, the objective medical evidence does not reflect a diagnosis related to a back disorder until approximately July 1992, more than 36 years after his separation from service. The post-service evidence also reflects that the Veteran did not seek treatment for back pain until September 1987, over 31 years after his separation from service. Therefore, continuity of symptoms has not been shown based upon the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board acknowledges the statements from the Veteran regarding the history of symptoms of his back disorder since service. Although the Veteran is competent to report that he experienced symptoms of a back disorder since service, including pain and limitation of motion, he is not competent to provide a diagnosis or determine that these symptoms were manifestations of his current back disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his back disorder has persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not probative in establishing the nexus element. As an initial matter, the large gap between the Veteran’s service and when he first sought treatment for back pain in September 1987, over 31 years after his separation from service, weighs against the Veteran’s claim. Moreover, the Veteran’s November 1955 report of medical history and November 1955 separation examination report are inconsistent with his claim that his back pain has persisted since service because the Veteran did not indicate that he experienced any back pain or had any symptoms of a back disorder in the report of medical history and the examining physician did not note any symptoms of or diagnose a back disorder in the separation examination report. In fact, the November 1955 separation examination report reflects that the examining physician determined that the Veteran’s spine was “normal.” Therefore, a continuity of symptoms is not shown based on the Veterans statements or the clinical evidence. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed back disorder to active duty service, despite his contentions to the contrary. Here, the Board places significant probative weight on the opinion of the VA examiner. In February 2016 the examiner considered whether the Veteran’s back disorder was incurred in or caused by the Veteran’s active duty service. Based upon her in-person examination of the Veteran, her review of the Veteran’s treatment records, and her review of the Veteran’s claims file, the examiner opined that the Veteran’s back disorder was less likely than not incurred in or caused by his active duty service. In May 2018, the examiner issued an addendum opinion where again opining that the Veteran’s back disorder was less likely than not incurred in or caused by his active duty service. In support of her opinion, the examiner explained that the back strains noted in the July 1955 and August 1955 service treatment records were acute episodes that were treated with conservative measures and resolved without residuals given that the November 1955 separation examination report was silent concerning any symptoms or diagnoses related to a back disorder. Additionally, the examiner explained that the Veteran’s current lower back conditions are related to the bone and there is no clinical, medical, or significant research evidence to support the contention that the Veteran’s current back disorder was due to, caused by, or aggravated by muscle strains that occurred 50 years prior to the examination. Given her in-person examination of the Veteran, her review of the claims file, and her expertise, the Board finds that the VA examiner provided a persuasive rationale and a probative opinion. Moreover, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his back disorder and active service. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his back disorder to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his back disorder. See Jandreau, 492 F.3d at 1377, n.4. Although the Veteran can provide competent testimony regarding symptoms, the back disorder on appeal is not a disorder that can be diagnosed by its unique and identifiable features as it does not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his back disorder is related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion.   By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel