Citation Nr: 18149136 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-58 391A DATE: November 8, 2018 ORDER Service connection for a back disability denied. FINDING OF FACT None of the competent and credible evidence suggests that the Veteran’s currently reported back discomfort is in any way associated with an event, injury, or disease in service, or that a chronic disease of the back was manifest to a compensable degree during the one-year period following the Veteran’s release from service. CONCLUSION OF LAW The criteria for an award of service connection for a back disability have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 5107 (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 in the U.S. Army from April 1969 to April 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Entitlement to service connection for a back disability is denied. The Veteran seeks to establish service connection for a back disability. He says that his current difficulties can be traced to an incident in service in 1969 when he slipped on the floor of a mess hall and fell on his back. He also says that he carried heavy backpacks and lifted various heavy equipment during service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including arthritis—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the Board finds that the preponderance of the evidence is against the Veteran’s claim. His service records are entirely devoid of any complaints, treatment, or diagnoses relating to the back. Moreover, at the time of his examination for service separation in March 1971, he denied on a Report of Medical History that he then had, or had ever had, “back trouble of any kind.” He signed the report below an affirmation indicating that the information he reported was “true and complete to the best of my knowledge.” The Veteran’s current statements with respect to in-service injury and continuity of back pain since are inconsistent with what he reported in March 1971. As such, they are not credible. That is not to say that the Veteran is willfully manufacturing facts; only that his current recollection of events is at odds with what he reported previously. None of the other post-service evidence of record suggests that the Veteran’s currently reported back discomfort is in any way associated with an event, injury, or disease in service, or that a chronic disease of the back was manifest to a compensable degree during the one-year period following the Veteran’s release from service. Absence such evidence, getting an examination or medical opinion is not necessary. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The appeal is denied. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel