Citation Nr: 18155247 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 13-13 031 DATE: December 3, 2018 ORDER Entitlement to service connection for a low back disability, best characterized as degenerative arthritis of the spine and intervertebral disc syndrome, to include as secondary to service-connected disability, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s low back disability, best characterized as degenerative arthritis of the spine and intervertebral disc syndrome, manifest to a compensable degree within the applicable presumptive period, that continuity of symptomatology is established, is otherwise etiologically related to an in-service injury, event, or disease, or proximately due to or aggravated beyond its natural progression by service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability, best characterized as degenerative arthritis of the spine and intervertebral disc syndrome, to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 101, 1101, 1112, 1113, 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1981 to May 1986 and from August 1993 to December 1993 with additional service in the Air Force Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA), Atlanta Regional Office (RO), in Decatur, Georgia. This matter was previously before the Board in February 2016 and May 2017, when it was remanded for additional development. It now returns for appellate review. In his April 2013 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. The May 2017 Board remand found the Veteran should be afforded another opportunity to testify at a Board hearing. Most recently, a March 2018 VA letter notified the Veteran that a Board videoconference hearing had been scheduled for April 5, 2018, which was mailed to his most recent mailing address of record. The Veteran did not report for the scheduled hearing and no good cause was shown for his absence; therefore, the hearing request is deemed withdrawn. 38 U.S.C. § 20.704 (d). Additional evidence, including VA treatment records, vocational rehabilitation records and a December 2016 mental disorders disability benefit questionnaires, were associated with the claims file subsequent to the most recent, August 2016 supplemental statement of the case issued for the appeal herein. The Veteran did not waive review of this evidence. However, this evidence is either duplicative of other evidence of record or not relevant to the claim herein. Therefore, it is not necessary to remand this claim to the Agency of Original Jurisdiction (AOJ) for consideration of the evidence in the first instance. See 38 C.F.R. § 20.1304 (c). 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected disability In December 2009 statement, the Veteran generally asserted he had a low back disability as a result of an in-service motor vehicle accident, and in a July 2009 statement, his daughter reported, in part, that her father was involved in an accident in 1995 and that he had had back problems ever since. In the alterative, in a July 2009 statement, the Veteran stated, in part, he was told by VA physicians that his terrible headaches and tight neck might be why his lower back was so messed up, and similarly, in his July 2010 notice of disagreement, he reported in part, two of his VA doctors had told him that his lower back conditions were directly connected to his cervical problems. In this regard, the Veteran is service-connected for posttraumatic headaches and degenerative disc disease of the cervical spine C5-7. Additionally, a May 1997 Report of Investigation and Line of Duty and Misconduct Status as to an 1995 motor vehicle accident, characterized the type of service as inactive duty training (INACDUTRA), and more specifically as unit training assembly (UTA) and reported, in part, that while traveling home from a UTA, the Veteran’s vehicle was broadsided by another vehicle that ran a red light and noted that such occurred on August 22, 1995. Thus, this service constitutes INACDUTRA service. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Under VA regulations, in addition to a disability incurred in or aggravated by active duty, service connection may be granted when the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty during a period of active duty for training (ACDUTRA), and when the individual became disabled or died from an injury incurred or aggravated in line of duty during a period of INACDUTRA. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. A claimant may also be service connected for an injury or, (in the case of ACDUTRA) and/or a disease, incurred while proceeding directly to or returning directly from ACDUTRA or INACDUTRA training. 38 C.F.R. § 3.6 (e). To establish service connection on a direct incurrence 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). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disability that is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The question for the Board is whether the Veteran has a current low back disability due to service or that was proximately due to or aggravated beyond its natural progression by service-connected disability. In this regard, the Board will consider whether a low back disability manifest in service, manifest to a compensable degree within the applicable presumptive period, whether continuity of symptomatology has been demonstrated, or whether the disability is otherwise etiologically related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of intervertebral disc syndrome and chronic lumbar strain, as diagnosed by a June 2016 VA examiner, and evidence shows that an in-service August 1995 motor vehicle accident occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses of degenerative arthritis of the spine and/or intervertebral disc syndrome, was/were manifested to a compensable degree within the applicable presumptive period, demonstrated continuity of symptomatology or is/are otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Further, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses of degenerative arthritis of the spine and/or intervertebral disc syndrome, was/were proximately due to or aggravated beyond their natural progression by his service-connected cervical spine disability. The Board finds the June 2016 back conditions disability benefits questionnaire examiner’s diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome are the best characterization of current disability. In this regard, forensic evaluators, such as VA examiners, generally have access to more sources of information, such as service treatment records, have more time to review relevant private and/or VA treatment records, are able to conduct objective testing, and are able to use structured diagnostic interviews, which are more accurate than unstructured interviews, as they do not have to worry about the impact of their diagnosis on the therapeutic alliance. The June 2016 back conditions disability benefits questionnaire opined that the Veteran’s current back condition was less than 50 percent likely due to his active service, including his motor vehicle accident in 1995. In support of such, the June 2016 VA examiner stated an August 23, 1995 medical record described a motor vehicle accident over the weekend with head trauma/injury and concussion as the diagnosis. The June 2016 VA examiner noted the medical record documented the Veteran reported headaches and pain and a shock like feeling with neck motion; however, the examiner emphasized the record reported no injury to the back and no symptoms reported in the back as the symptoms were all related to his neck at the time of injury, which was evidence against a service related back condition secondary to his motor vehicle accident. Further, the June 2016 examiner cited to a February 10, 1999 medical evaluation board examination which reported no recurrent back pain present time of the examination or ever in the past per the Veteran himself. The June 2016 VA examiner found the February 1999 examination report was medical evidence against a directly incurred service related back problem, as the Veteran had no complaints of back pain per his history review during active service. Additionally, the June 2016 VA examiner cited to an August 10, 2006 VA examination, which described neck pain which resulted from a motor vehicle accident in 1995; however, the medical history of the examination clearly reported that low back pain started with a fall off a truck six months ago and doctors thought he had a herniated disk. In addition, the June 2016 VA examiner cited a July 8, 2008 VA treatment record which reported that on February 9, 2006, the Veteran was hit by a car hauler, fell five to six feet, and hit his head on the cement. Fractures in both and legs were reported, and complaints that day were neck and lower back pain. The June 2016 VA examiner opined that this was clearly a post service event and was attached with a complaint of back pain which again was reported post service rather than during active service. Further, also of record is an April 2008 VA medical letter, which noted, in part, the Veteran continued to suffer from chronic back pain which started after his on the job injury. The April 2008 VA medical letter does not specify the on the job injury being referred to in more detail. However, an April 2006 VA treatment record documented in part, that the Veteran reported that he fell at work a few weeks ago and broke both of his hands/wrists. Similarly, a July 2006 VA treatment record documented the Veteran’s complaint of pain to his wrist and back, that he reported that he was in crisis since he fell from his truck and requested referral for evaluation of back pain. Additionally, another June 2007 VA treatment record documented a chief complaint of low back pain and that diagnostically, he had a magnetic resonance imaging (MRI) test pending from a worker’s compensation case. Thus, this evidence is consistent with the June 2016 VA examiner’s findings. Further, the June 2016 VA examiner provided an opinion which addressed the claim on a secondary basis. The June 2016 VA examiner opined that it was less than 50 percent likely that the Veteran’s current back condition was secondary to or aggravated by his service-connected neck condition. In support of such, the June 2016 VA examiner explained that the Veteran’s neck condition would not cause a secondarily connected back condition as these two regions were anatomically distinct, and biomechanically, the neck had no effect on the thoracolumbar/lumbar back region. Further, although a June 2014 VA treatment record, as part of a subjective evaluation documented, in part, “back pain may be triggered by c stress”, it was not clear if such was the Veteran’s own report describing the onset of his back pain or an actual finding of a medical provider. Additionally, as described above, in a July 2009 statement, the Veteran in part, linked his service-connected headaches to his low back disability; however, the only evidence of any relationship between these disabilities is the Veteran’s bare assertion. The Veteran has not been shown to have the requisite medical knowledge to be deemed competent to render an opinion as to the etiology or aggravation of low back disability. Thus, a medical opinion addressing the claim on the basis of secondary to posttraumatic headaches is not warranted. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006); 38 C.F.R. § 3.159(c)(4)(i). Turning to other theories of entitlement, with respect to arthritis of the lumbar spine, the Board has considered whether there is competent credible evidence of continuity of symptomatology, or whether such manifest to a compensable degree within one year of separation, but finds that there is not. Specifically, the evidence does not demonstrate that any lumbar spine arthritis arose during service or arose within one year of discharge from service. As discussed above, the Veteran’s service treatment records reveal no diagnoses of a back disability or symptoms thereof. Further, the June 2016 VA examiner cited to 2007 and 2012 x-ray reports which showed degenerative changes of the lumbar spine; however, the June 2016 VA examiner explained that the 2007 changes were mild, and likely were recent developments post service given the mild nature of the degenerative changes reported and given the negative history for back problems upon exiting active service on his medical examination. Further, the June 2016 VA examiner cited to a 2011 MRI of the lumbar spine which showed narrowing at L5-S1 and found these degenerative changes and disc bulges were likely post service related, as complaints of back pain during service were not found in record review. In addition, the June 2016 VA examiner explained that degenerative disk disease and spondylosis findings, such as the ones reported on his imaging studies, tended to significantly increase in incidence with age and it was probable that his degenerative arthritis was a result of wear and tear over a lifetime rather than specific to any particular service event or cumulative trauma in the service. Thus, service connection on a presumptive basis is not warranted. In reviewing the Veteran’s claim for service connection for a low back disability, the Board has reviewed the written statements of the Veteran and his family members, which linked his low back disability to an in-service motor vehicle accident, or in the alternative, as secondary to service-connected disability. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness and the Veteran and his family members are competent in this regard. Layno v. Brown, 6 Vet. App. 465 (1994). However, the origin or cause of the Veteran’s current low back disability is not a simple question that can be determined based on mere personal observation by a lay person through his senses. Further, there is no evidence that the Veteran or his family members possess the requisite medical training or expertise necessary to render them competent to offer evidence on the causal question of whether the Veteran’s low back disability can be attributed to his active service or secondary to service-connected disability. As such, the lay testimony is not competent to establish medical etiology or nexus. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Further, as discussed above, the Veteran reported that physicians had told him that his low back disability was related to service-connected disability; however, to the extent the Veteran proffers this information as a positive nexus between his current low disability and a service-connected disability, the Board finds that a layperson’s account of what a doctor purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to hold any probative value. Robinette v. Brown, 8 Vet. App. 69 (1995). Consequently, the Board gives more probative weight to the competent medical evidence, specifically, the June 2016 VA examiner’s findings and opinions. The June 2016 examiner’s findings and opinions were predicated on a full overview of the entire relevant record and were presented by an examiner who was specifically tasked to present nexus opinions after review of the evidence. The June 2016 examiner explained the reasons for his conclusions based on review of the record, to include the Veteran’s motor vehicle injury. Further, the findings are supported by other evidence of record. For example, a March 2014 VA treatment record noted, in part, that the Veteran’s prior job was a truck driver and that he fell backward in February 2006 and landed on his left shoulder and head and an October 2014 VA treatment records documented, in part, that in 2006 the Veteran fell backwards off a rig while working on an unauthorized vehicle, sustained yet another concussion and other injuries. Similarly, a January 2007 VA treatment record noted that the Veteran was seeking treatment for an acute back strain and that he had had this problem intermittently for 10 months, which again supports the existence of a back injury in 2006. Thus, June 2016 examiner’s opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Overall, the weight of the evidence does not show any diagnosed low back disability manifested in service and continued thereafter, arose within one year of separation from service, was the result of any injury, disease, or event during active service, or was proximately due to, or aggravated by, service-connected disability. As the preponderance of the evidence is against the claim, the doctrine   of reasonable doubt is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, the appeal for service connection for a low back disability is denied. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel