Citation Nr: 18148961
Decision Date: 11/08/18	Archive Date: 11/08/18

DOCKET NO. 18-21 445
DATE:	November 8, 2018
ORDER
Entitlement to service connection for a low back disability is denied.
FINDING OF FACT
The Veteran’s current low back disability was not shown in service, was not shown to a compensable degree within one year of service discharge, and is not otherwise related to active duty service.
CONCLUSION OF LAW
The criteria for service connection for a low back disability, to include degenerative changes, have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from February 1978 to February 1981 with periods of Reserve service thereafter.
This appeal is before the Board of Veterans’ Appeals (Board) from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
Entitlement to service connection for a low back disability.
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Arthritis is a chronic condition listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.307, 3.309(a).
In deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). 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). 
When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. 
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 
The Veteran contends that service connection for a low back disability is warranted because it was incurred in service or otherwise a result of service. Specifically, the Veteran asserts that her low back disability was due to stress from road marches, jumping in and out of foxholes, and sit ups in service. Further, she indicated that service treatment records show that she sought treatment for her low back while in service in 1979. See 1) October 2018 appellant’s brief; 2) August 2018 appellant’s brief; 3) August 2017 notice of disagreement; and 4) July 2017 VA examination report.
The Board has carefully reviewed the evidence of record and finds that service connection for a low back disability is not warranted because the preponderance of the evidence is against a finding that the Veteran has a low back disability that is related to service, which is explained below.
As to evidence of a current disability, the July 2017 VA examiner noted a diagnosis of degenerative disc disease of the lumbosacral spine. September 2016 medical records reflect x-rays of the lumbar spine which show a moderate amount of arthritis. Thus, the Veteran meets the first element for service connection.
As to evidence of an in-service disease or injury, a review of the Veteran’s service treatment records reflects the Veteran’s complaint of bilateral lower back pain in October 1979. Given the evidence of lower back pain in service, the second element for service connection is met.
As to a nexus between the current disability and service, the Board finds the preponderance of the evidence is against this element. While the Veteran complained of low back pain in October 1979, the January 1981 Report of Medical Examination at service separation shows a normal clinical evaluation for “spine, other musculoskeletal” as well as “lower extremities.” In the accompanying January 1981 Report of Medical History, the Veteran explicitly denied having ever experience recurrent back pain. The Board accords high probative value and credibility to these documents, as the Veteran completed them contemporaneously with service. Thus, at separation, the Veteran’s low back was normal and she denied having recurrent back pain at that time, which tends to show that she did not incur a chronic low back disability in service.
Post-service medical records, including in September 2016 reflect the Veteran’s complaints of low back pain and her report that she had experienced such pain since age 38 from basic training. The record shows that the Veteran began an exercise program in March 2016 which she felt aggravated her back and that she was not having consistent back pain until that time. The Veteran denied bowel/bladder function and paralysis in the lower extremities. A September 2016 private medical record from her physical therapist showed an initial evaluation visit where she reported lower back pain that was “off/on” for about 20 years. It is noted that she started a new exercise program in March (2016) and started to notice intermittent back pain in April (2016).  September 2016 medical records include x-rays of the lumbar spine which showed a moderate amount of arthritis. 
The July 2017 VA examiner opined that the claimed low back disability was less likely than not (less than 50 percent probability) incurred in or caused by claimed in-service injury, event, or illness. She indicated that the medical records from March 1979 and October 1979 show that the Veteran was assessed for a back condition during time in service and there is no documentation showing continuity of care between 1979 and 2016. The examiner also explained that degenerative disc disease (DDD) is a condition that causes discs in between the vertebrae of the spine to break down or lose integrity. She added that causes of DDD include aging or normal wear and tear due to daily activities and most cases of DDD of associated with the lumbosacral area can occur with aging. The examiner noted that there is no documentation of post-traumatic injury during service and the degree of degenerative changes corresponds with age and demographics. Thus, the examiner found that it is less likely that the Veteran’s lower back pain incurred-in or was caused by the complaint of low back pain in October 1979.
Service treatment records from the Veteran’s service in the Reserves reflect that in March 1985, February 1989, February 1993, and November 1998 medical examination reports show normal clinical evaluations for the spine.  In the accompanying reports of medical history, on each occasion the Veteran explicitly denied having ever experienced recurrent back pain. 
The Veteran showed minimal arthritis of the lumbar spine in September 2016, which is approximately 35 years after service separation. The preponderance of the evidence is thus against a finding that arthritis manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service and a presumption of service connection based on chronicity of arthritis is not appropriate. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a).
The Board finds that the Veteran has not offered probative and competent medical evidence establishing a nexus between her low back disability and service. Lay evidence may be competent to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A diagnosis of a low back disability requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value.
There are numerous post-service medical records reflecting complaints and treatment for a low back disability. However, these records do not provide a positive nexus regarding the onset, etiology, or relationship of a low back disability to military service. As discussed above, the medical records reflect the Veteran’s own subjective reports that she experienced low back pain since service, however continuity has not been shown. The record reflects that the current complaints of low back pain began after the Veteran started an exercise program in March 2016 which she felt aggravated her back and that she was not having consistent back pain until that time.
The Board finds the medical opinion of the July 2017 VA examiner more probative than her reports of pain since service. The VA examination report and opinion provides competent and probative evidence that weighs against the Veteran’s claim because the VA examiner reviewed the claims file, interviewed the Veteran, performed an appropriate examination, and provided a medical opinion supported by well-reasoned rationale. Furthermore, the opinion is consistent with the Veteran’s documented denial of having ever experienced recurrent back pain on separation and on several occasions thereafter.
For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s current low back disability was incurred in service or was otherwise related to active service. See 38 U.S.C. § 5107(a). Accordingly, service connection for a low back disability is not warranted.
 
J. GALLAGHER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Cheng, Associate Counsel