Citation Nr: 18154832 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 13-03 254A DATE: November 30, 2018 ORDER Entitlement to service connection for a chronic lumbosacral strain with mild degenerative arthritis is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s lumbosacral strain with mild degenerative arthritis manifested in service or within one year of separation, continuity of symptomology is not established; and his lumbosacral strain with degenerative arthritis is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a lumbosacral strain with mild degenerative arthritis have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from September 1975 to September 1978. The case was previously before the Board in December 2016 and was remanded for additional development. The directives having been substantially complied with, the matter again is before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a 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” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303 (b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Entitlement to service connection for a lumbosacral strain with degenerative arthritis The Veteran contends that his low back disability began in-service and has continued since. Specifically, the Veteran contends that his duties in-service as a gunner working lifting and moving very heavy mortars and equipment resulted in ongoing back pain and his current low back disability. The Veteran reports spraining his back in-service. The Veteran is competent to describe his ongoing symptoms, in-service duties and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a diagnosis of a lumbosacral strain with degenerative arthritis. The Veteran contends that in-service working as a gunner he injured his low back. The Veteran’s DD 214 notes his military occupational specialty (MOS) was as an indirect fire infantryman with recognition as an expert rifleman. Service treatment records (STRs) have been associated with the claims file. At separation in August 1978 on the report of medical examination, a clinical evaluation of the Veteran’s spine and other musculoskeletal system was normal. The examiner noted the Veteran reported back trouble. In light of the Veteran’s consistent statements and the evidence of record, including in-service duties there is credible evidence indicating some form of an in-service injury is satisfied. However, the service records do not support an onset of the Veteran’s current low back disability during active service. While the Board notes the Veteran did report a history of back pain at separation, a clinical evaluation at separation of the Veteran’s spine and musculoskeletal system was normal. The issue is whether the Veteran’s current lumbosacral strain with degenerative arthritis is related to service. The Veteran was afforded a VA examination in March 2011. The examiner noted a chronic lumbar strain with mild degenerative arthritis at L5/S1. The examiner noted the Veteran’s reports of injuring his back in-service picking up heavy military equipment. Imaging noted small lower lumbar osteophytes and minimally decreased intravertebral disc height at L5-S1. The Veteran reported ongoing low back pain which is exacerbated by prolonged standing, walking and heavy lifting. The examiner found that the Veteran’s current back pain was less likely than not related to an injury sustained in active service. Then, the Veteran was afforded a VA examination in September 2017. The examiner noted a lumbosacral sprain. The Veteran reported injuring his back lifting heavy mortars in-service. Post-service the Veteran reported working construction, and was involved in a motor vehicle accident where he injured his back. The Veteran reported difficulty lifting heavy objects, difficulty with pushing a wheelbarrow, digging and decreased range of motion. The examiner noted the Veteran’s low back disability impacts his ability to work. The examiner found that it was less likely than not that the Veteran’s current low back disability was incurred in or was caused by the claimed in-service injury, event or illness. The examiner noted a review of the Veteran’s STRs and examination at separation where the Veteran noted back troubles, and the clinical evaluation of the spine and musculoskeletal system. The examiner noted that no other notes referring to a low back condition were identified in the STRs. The examiner noted an extensive review of the Veteran’s private and VA treatment records and statements regarding his in-service duties. The examiner highlighted that in July 1989 treatment records the Veteran reported injuring his back while laying landscaping tiles and in November 2000, he reported ongoing low back pain for 5 years. The examiner found that the Veteran reported fleeting back pain at separation which is consistent with heavy lifting the Veteran performed during service. Treatment records post service note reports of intermittent low back pain starting in the mid-1980s. However, even considering this, the examiner noted that in 1999 the Veteran was involved in a severe motor vehicle accident which required several months of recovery. It was after this 1999 motor vehicle accident that the Veteran was diagnosed with a lumbar sprain/strain and then subsequent to this over the following 1 to 2 decades mild degenerative changes developed. Thus, the examiner found that it is less likely than not that the Veteran’s current low back disability is due to his history of reported back trouble in-service. The examiner found that it is more likely that the Veteran’s current low back disability is due to the significant trauma he sustained in the 1999 motor vehicle accident. VA and private treatment records have been associated with the claims file. Treatment records in March 1992 note low back pain on the Veteran’s right side with reported weakness. Imaging in March 1992 noted a normal lumbosacral spine. Treatment records in September 1999 note the Veteran was seen for low back pain after being thrown from the back of a truck. Private treatment records note ongoing treatment after the Veteran was involved in a September 1999 motor vehicle accident. October and November 1999 treatment records note ongoing lumbar tenderness but the Veteran’s pain continued to improving and he was not able to work due to the motor vehicle accident. Range of motion testing in November 1999 noted reduced range of motion on flexion and extension, and a lumbosacral sprain/strain which is improving. In November 2000 VA treatment records the Veteran reported low back pain that had been ongoing for 5 years. He reported increased pain recently with heavy lifting and sitting for long periods of time with back spasms. These treatment records do not contradict the VA examinations and are absent indications of a relationship between the Veteran’s current low back disability and in-service events. The Veteran’s representative in October 2016 correspondence contends that service connection is warranted as his current low back disability is due to his in-service duties as a gunner. The issue before the Board is whether the Veteran’s current lumbosacral strain with degenerative arthritis is attributable to service. VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran’s representative is not competent to provide a medical opinion, which it has attempted to do in its argument. Furthermore, even if the representative was found to be a competent source of opinion, evidence favorable to a veteran’s claim that does little more than suggest a possibility that his illnesses might have been caused by service is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for a lumbosacral strain with degenerative arthritis is warranted. The Board concludes that service connection is not warranted as the Veteran’s current low back disability did not begin during service and is not attributable to service. The Veteran’s statements regarding his current symptoms and in-service events are credible. While the Veteran reports his current symptoms of low back pain and lumbosacral strain are related to service and his in-service duties as a gunner, the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes that the medical evidence is more probative and credible than the lay opinions of record. The Board gives more probative weight to the competent medical evidence, specifically the September 2017 VA examination which finds that it is less likely than not that the Veteran’s current low back disability was incurred in or was caused by the claimed in-service injury, event or illness. The examiner noted a thorough review of the Veteran’s STRs and examination at separation where the Veteran noted back troubles, and the clinical evaluation of the spine and musculoskeletal system as well as an extensive review of the Veteran’s private and VA treatment records and statements regarding his in-service duties. The examiner found that it is less likely than not that the Veteran’s current low back disability is due to his history of report back trouble in-service. The examiner found that it is more likely that the Veteran’s current low back disability is due to the significant trauma he sustained in the 1999 motor vehicle accident. The Board notes that at separation in August 1978 on the report of medical examination, clinical evaluation of the Veteran’s spine and other musculoskeletal system was normal. The Board notes that the Veteran reported back trouble at separation however, the clinical evaluation of the spine and musculoskeletal system was normal, and the September 2017 VA examiner that such pain resolved quickly and was due to his in-service duties. The Board finds the clinical examination noting a normal evaluation of the spine and musculoskeletal system is entitled to probative weight. The Board has considered the Veteran’s lay statements however, the Board gives more probative weight to the competent medical evidence specifically, the September 2017 VA examination. In addition, the Board concludes that, while the Veteran has degenerative arthritis, which is a chronic disease under 38 U.S.C. § 1101(3)/38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. A lumbosacral strain with degenerative arthritis was not “noted” during service or within one year of separation. See Walker, 708 F.3d 1331. Lumbosacral imaging in March 1992 noted a normal lumbosacral spine. The Veteran indicated in-service he injured his low back lifting heavy objects performing his duties as a gunner and as noted above the Board finds an in-service injury. See 38 U.S.C. § 1154; 38 C.F.R. § 3.303(a). However, based on the probative evidence of record the Board finds that the Veteran’s low back arthritis did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. VA treatment records note the Veteran was not diagnosed with a lumbosacral strain with subsequent degenerative changes until 1999 after, a severe motor vehicle accident. The September 2017 VA examiner attributed the Veteran’s current low back degenerative changes to this motor vehicle accident, and these degenerative changes manifested several decades after service. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a lumbosacral strain with degenerative arthritis. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kardian