Citation Nr: 18157904 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-00 410 DATE: December 14, 2018 ORDER Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to an initial compensable evaluation for headaches is remanded. FINDING OF FACT The Veteran’s current low back disability was not incurred in or caused by his active service. CONCLUSION OF LAW The criteria for service connection for a back disability have not all been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1956 to October 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in a January 2016 letter, the Veteran indicated he has received Social Security payments, but did not indicate what he was receiving these payments for. A June 2016 inquiry show that the Veteran had a disability onset date of May 31, 1977. The Veteran has not alleged that he received Social Security disability due to his low back disability. As such, the Board finds the possibility that the 1977 records are related to the Veteran’s current back disability too tenuous to trigger any further duty to assist. This claim was previously before the Board. In April 2018, the Board remanded the claim for a VA examination regarding the claim of service connection for a low back disability. The Veteran was afforded a new examination in May 2018. Accordingly, the Board finds that the remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Low Back Disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). “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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his current low back disability is related to his service and is the result of him carrying heavy things during his active service. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s low back disability is related to his active service. The May 2018 VA examiner found the Veteran had several low back diagnoses, discussed in more detail below. As such, the first element of service connection has been met. In an April 2016 statement, the Veteran wrote he has low back pain as the result of strain caused by dragging heavy trucks for long periods over long distances in service. The Veteran’s service treatment records appear to have been destroyed in a July 1973 fire at the National Personnel Record Center. As such, the Board finds the Veteran’s statement credible and finds that the second element of service connection has been met. The record contains a January 2016 private opinion from C.M.Q., M.D. The physician provided a diagnosis of lumbago and opined that the Veteran’s current medical conditions are more probable than not secondary to his military service. The Board accords this opinion little probative weight because there is no rationale provided to support the opinion. The Veteran was afforded a VA examination in May 2018. The examiner was asked to identify any back conditions and to determine whether they were incurred in or related to service, to include a possible back strain during service. The examiner identified three low back diagnoses; thoracolumbar dextroscoliosis diagnosed in 1975, lumbar degenerative disc disease diagnosed in 2013, and grade 1 anterolisthesis diagnosed in 2018. The examiner found that it was less likely than not that any of these three conditions were related to service. The examiner found that thoracolumbar dextroscoliosis was not related to service because this is usually a hereditary condition and is not associated with a back strain. The examiner also noted that this was diagnosed more than 20 years after service. The examiner stated that lumbar degenerative disc disease was diagnosed many years after service and is due to the normal progression of aging. She also stated that anterolisthesis was diagnosed many years after service and is commonly caused by aging. The examiner addressed the January 2016 private opinion and stated that it did not include a musculoskeletal examination, and the physician did not state whether he reviewed Veterans medical records, and offered a diagnosis without and radiographic imaging results. The Board finds the May 2018 VA examiner’s opinion to be the most probative evidence of whether the Veteran’s current back condition is related to service. The examiner reviewed the entire record, including the private opinion, and provided rationale for her findings. The Board has also considered the Veteran’s statements that his current low back disability is related to his service. However, whether the Veteran’s back disability is related to his active service is a complex medical question, and is not within the knowledge of a lay person or determinable by observation with one’s senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran’s statement is not competent evidence and not probative. The claims file does not contain any probative evidence relating the Veteran’s back disability to his service. As such, the preponderance of the evidence is against finding the Veteran’s current low back disability is service connected. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND During the pendency of this appeal, in a September 2018 rating decision, the RO granted entitlement to service connection for headaches and assigned a 0 percent evaluation. The Veteran filed a notice of disagreement with this rating decision in November 2018. As of this decision, no statement of the case (SOC) has been issued with respect to this claim. Consequently, the Board must remand this claim in order for the RO to issue an SOC. The matters are REMANDED for the following action: Furnish the Veteran with an SOC regarding the claim of entitlement to an initial compensable rating for headaches. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel