Citation Nr: 18153985 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-34 941 DATE: November 28, 2018 ORDER Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is denied. FINDING OF FACT The Veteran’s degenerative arthritis of the thoracolumbar spine was not manifest during service and is not attributable to service. The Veteran’s degenerative arthritis of the thoracolumbar spine was also not manifest within one year of service. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 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 from June 1989 to December 1991. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Entitlement to service connection for degenerative arthritis of the thoracolumbar spine Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease or injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, including degenerative arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Alternatively, for the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. §§ 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). 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. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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.”). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 498 (Fed Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts his degenerative arthritis of the thoracolumbar spine is related to his military service. The evidence establishes that the Veteran has a current low back disability. A December 2014 VA examination report contains a diagnosis of degenerative arthritis of the spine. Regarding whether there was in-service event or injury, a review of the Veteran’s service treatment records (STRs) shows a single complaint of back pain in 1991 from normal use with no reports of previous back trouble. See April 1991 STR. The Veteran claims two separate in-service injuries caused his current back disability, a fall from an obstacle course in 1990, causing the Veteran to be taken away in a field ambulance, and a slip and fall on icy steps. The Board notes that the Veteran and his representative have indicated that relevant evidence exists to support his claim that was not reviewed previously, specifically in-service medical records from Missouri and Panama. However, review of the evidence of record shows that there is no evidence from either location of an obstacle course fall nor a slip and fall on steps. The Veteran’s representative reported that the Veteran would attempt to provide the in-service dates of treatment for each location. However, the Veteran has provided nothing. “The duty to assist is not always a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board notes the Veteran first mentioned a fall from an obstacle course as the cause of his back pain in 2016, 27 years after separation from the Army, and the only mention of the slip and fall on the icy stairs is in the Veteran’s Form 9. Prior to this, there is no mention of either incident. STRs in the year following the alleged fall contain denials of back problems and hospital visits as well as a denial of back problems in his separation examination. See November 1991 STRs. In a February 2008 private examination, the Veteran reported his back pain beginning after service in the mid-1990s while working in a shipyard with a re-injury in November 2007. See February 2008 private treatment record. In December 2014, the Veteran was afforded a VA examination to determine the etiology of his degenerative arthritis of the thoracolumbar spine. The VA examiner opined it less likely than not that the Veteran’s current spine disability was caused by his active duty service. The basis for this conclusion was the lack of documentation to show an ongoing chronic disability while in service or after separation. The VA examiner reviewed the Veteran’s claims file, noted the Veteran’s in-service injuries, performed a physical examination, and provided a rationale for the stated conclusion. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for the Veteran’s degenerative arthritis of the thoracolumbar spine is not warranted. The post-service evidence establishes that the Veteran has current degenerative arthritis of the thoracolumbar spine. However, there is no credible evidence that he had a back injury during service and there is no credible evidence linking his current degenerative arthritis of the thoracolumbar spine to service. Although the Veteran’s contends that he injured his back from two separate falls while in service, this assertion is inconsistent with the other more probative evidence of record. See Caluza, 7 Vet. App. 498, 511. The Veteran denied any back injuries in his STRs and other than the single report of back pain from normal use, there are no other reports of back pain. The Veteran’s current contentions are also inconsistent with the 2008 private treatment record where the Veteran stated he injured his back post-service. Finally, after reviewing the Veteran’s records and performing a physical examination, the VA examiner provided a negative nexus opinion between the Veteran’s current degenerative arthritis of the thoracolumbar spine and his active service. The Board finds that the December 2014 VA examination offers the strongest and most probative evidence regarding the etiology of the Veteran’s current degenerative arthritis of the thoracolumbar spine. In summary, the evidence of record does not support that the Veteran’s current degenerative arthritis of the thoracolumbar spine was incurred in or aggravated by active service, foreclosing the possibility of nexus between back disability and active service. The preponderance of evidence is against the Veteran’s claim and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. C. Slaughter, Associate Counsel