Citation Nr: 18145743 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-60 439 DATE: October 30, 2018 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine is denied. FINDING OF FACT 1. The Veteran has currently diagnosed degenerative arthritis of the lumbar spine. 2. Symptoms of arthritis of the lumbar spine were not both chronic in service and continuous since service separation. 3. Arthritis of the lumbar spine did not manifest to a compensable degree within one year of service separation. 4. Currently diagnosed arthritis of the lumbar spine was not incurred in or caused by active service. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107, 5121 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Air Force from May 1968 to May 1972. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Entitlement to service connection for degenerative arthritis of the lumbar spine Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may 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) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309 (a); therefore, the provisions of 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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 a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b) (2017). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). While 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. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). The Veteran contends that his currently diagnosed degenerative arthritis of the lumbar spine is related to lumbar strains diagnosed while in service. Service treatment records show that the Veteran was diagnosed with lumbar strains in 1969, February 1971 and September 1971. A January 1972 separation examination notes the Veteran’s three lumbar strains while in service, in which the examiner denoted that the Veteran had full recovery after each strain, with reported occasional low back pain with heavy exertion. VA treatment records include a December 2013 imaging report of the lumbar spine, which showed a normal lumbar sacral spine. An April 2014 MRI of the lumbar spine showed mild degenerative disc disease of the L1 and L2. A June 2015 VA examination confirms the Veteran’s diagnosis of degenerative arthritis of the lumbar spine. During the examination, the Veteran reported that he started getting injection therapy in 1999. Upon review of the Veteran’s claims file and examination of the Veteran, the VA examiner concluded that it was less likely than not that the Veteran’s present back problems were a continuation of the inservice problems. The examiner reasoned that the in-service lumbar strains were acute which apparently resolved, with no mention at the end of service. Additionally, there were no medical records from service separation in 1972 until 2013. The Board finds that the Veteran has currently diagnosed degenerative arthritis of the lumbar spine. However, the Board finds that symptoms of degenerative arthritis of the lumbar spine were not chronic in service and continuous since service separation. Service treatment records document three lumbar strains in 1969 and 1971, which had resolved after each incident. And while the Veteran had reported he experienced back pain with heavy lifting on separation, he has not contended experiencing continuous symptomology since service separation. Notably, the record first shows complaints of back pain in 1999, many years after service separation. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). A March 2014 VA record noted a history of back pain present “four years.” Therefore, the Board finds that symptoms of a lumbar spine disability were not chronic in service and continuous since service separation. The Board finds that degenerative arthritis of the lumbar spine did not manifest to a compensable degree within one year of service separation. VA treatment records include a December 2013 x-ray report in which the Veteran was shown to have a normal lumbar spine. The Veteran was first shown to have degenerative arthritis of the lumbar spine in Apri 2014 by MRI, many years after service separation. Maxson, 230 F.3d at 1333. The Board finds that degenerative arthritis of the lumbar spine was not otherwise incurred in or caused by service. A June 2015 VA examiner opined that it was less likely than not that the Veteran’s present back problems were a continuation of his in-service problems. In providing the opinion, the VA examiner acknowledged the Veteran’s history of lumbar strains while in service, but found that the strains were acute and had resolved in service. The Board finds that the VA examiner’s opinion as to the etiology of the Veteran’s lumbar spine disability was based on a thorough review of the Veteran’s record and is adequate for decisional purposes. The only other evidence of record tending to relate the Veteran’s current arthritis of the lumbar spine to service are the Veteran’s lay statements, however, the Board finds that the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the onset and etiology for the diagnoses of degenerative arthritis of the lumbar spine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board finds, based on the medical and lay evidence of record, that Veteran’s degenerative arthritis of the lumbar spine was not incurred in or caused by service. (Continued on the next page)   In conclusion, the Board finds that entitlement to service connection for degenerative arthritis of the lumbar spine is not warranted. Because the weight of the evidence is against the claim, the doctrine of the benefit of the doubt is not for application. 38 U.S.C. § 5107 (2012 38 C.F.R. § 3.102 (2017). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel