Citation Nr: 18152963 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 10-21 456 DATE: November 27, 2018 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has a low back disability etiologically related to an in-service injury, event or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously remanded by the Board in September 2012 and August 2017. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. Entitlement to Service Connection for a Low Back Disability The Veteran contends that he has a low back disability that is directly related to his active service. Specifically, the Veteran contends that he was treated for back pain during his active service and the pain continues to the present. See VA Form 9, Appeal to Board of Veterans’ Appeal, received May 2010. To establish service connection for a disability on a direct-incurrent basis, the 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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. The evidence of record shows that the Veteran has a current diagnosis of lumbar spine degenerative disc disease with degenerative joint disease. See, e.g., March 2017 VA examination. Therefore, there is evidence of a current disability. As to an in-service event, injury or disease, the Veteran’s service treatment records reveal that he was diagnosed with back strain in March 1971. Accordingly, there is evidence of an in-service injury in the form of back strain, and the issue remaining for consideration as to direct-incurrence service connection is whether the Veteran’s current lumbar spine disability is etiologically related to the in-service injury. With respect to a nexus between the current disability and in-service event, the only competent medical opinion of record is the March 2017 VA examination and opinion, which weighs against the Veteran’s claim. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. During the examination, the Veteran reported that he had a back strain during his active military service. He further reported that he did not receive medical attention related to his back until 30 years after his separation from service. Additionally, the Veteran reported that he worked as a brick mason from 1975 to 2005 and was required to perform heavy lifting and frequent bending. The VA examiner opined that the Veteran’s lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness, to include the in-service back strain. As rationale, the VA examiner stated that the Veteran’s physical work from his post-service, intercurrent employment as a brick mason is at least as likely as not the cause of his lumbar spine disability. The VA examiner further stated that the lumbar spine degenerative disc disease with degenerative joint disease is not due to his in-service lumbar strain since lumbar strains do not progress to degenerative disc disease with degenerative joint disease. The VA examiner also stated that the Veteran’s service treatment records reflect that his lumbar strain resolved with no sequelae and that his separation examination did not reflect complaints of a lumbar spine disability. The only evidence indicating an association between the current lumbar spine degenerative disc disease with degenerative joint disease and active duty are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of degenerative disc disease with degenerative joint disease is not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay statements are not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current lumbar spine degenerative disc disease with degenerative joint disease had its onset during active duty does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to be deemed competent to offer a medical opinion as to the etiology of the lumbar spine degenerative disc disease with degenerative joint disease. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the lay statements provided by the Veteran are not competent evidence as to whether the Veteran’s current lumbar spine degenerative disc disease with degenerative joint disease, is related to active service. Moreover, such a finding is not supported by the record. Specifically, the March 2017 VA examiner reviewed the record, interviewed the Veteran, conducted an in-person examination, and reviewed the relevant medical literature and opined that the Veteran’s current lumbar spine degenerative disc disease with degenerative joint disease is related to his post-service career as a brick mason and not the in-service treatment for a lumbar strain. The Board has also considered whether the Veteran is entitled to service connection for lumbar spine degenerative disc disease with degenerative joint disease as a “chronic disease.” See 38 C.F.R. § 3.303 (b). Arthritis is included in the list of “chronic” diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with lumbar spine degenerative disc disease with degenerative joint disease in 2008, 36 years after his separation from active service. However, the Veteran has not argued, and the record does not show, that he was diagnosed with arthritis or any other “chronic” low back disease listed under 38 C.F.R. § 3.309 (a) during service or within one year of separation from service. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. Additionally, the first complaints of low back pain contained in the medical record are from February 2005. The prolonged period from separation from service until 2005 without complaints and/or treatments for low back pain is evidence for consideration in determining whether continuity of symptomatology has been demonstrated, and weighs against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran’s current lumbar spine degenerative disc disease with degenerative joint disease and his active military service. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel