Citation Nr: 18159070 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-09 205 DATE: December 18, 2018 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The Veteran had in-service treatment for back injuries (e.g., muscle strain) and has a current diagnosis of mild degenerative disc disease; however, the greater weight of the evidence is against a finding that the Veteran’s current back disability either began during or was otherwise caused by her military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1979 to July 1999. In her March 2015 substantive appeal (VA Form 9), the Veteran declined a Board of Veterans’ Appeals hearing. The claims file contains medical records not yet considered by the agency of original jurisdiction (AOJ). However, those records relate to claims not currently before the Board (e.g., entitlement to a higher rating for a service-connected disability of the left hand) and are otherwise not pertinent to the back disability claim that is being decided. The Board may proceed to the merits of the Veteran’s back disability claim with remanding the matter. 38 C.F.R. § 20.1304(c). Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran’s diagnosed back disability (arthritis) is included in the list of chronic diseases under 38 C.F.R. § 3.309(a), so the Board will apply the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology to the claim. The Veteran’s service treatment records document several complaints of back pain in service as well as diagnoses of muscle strain and muscle spasm. See, e.g., Service Treatment Records (March 1998 entry diagnosing muscle strain; January 1996 entry “Prob muscle spasm”; May 1991 entry noting complaints of “back pain due to lifting” and diagnosing a strain – “LBS”); May 1999 Report of Medical Examination (noting “chronic LBP”); May 1999 Report of Medical Assessment (“daily back pain”). An in-service event or injury is established. The Veteran underwent a June 2013 VA examination at which she was diagnosed with “mild DDD (degenerative disc disease) of the lumbar spine L5-S1.” A current disability is also established. The remaining element of her claim is a causal nexus between the current disability and the in-service event or injury.   As noted above, one way to prove the nexus element for a chronic disease such as arthritis is by showing a continuity of symptomatology. The Veteran has primarily relied on her own statements as support for her claim. See March 2015 VA Form 9 (“had it not been for that [in-service] trauma, I don’t think I would be living with my degenerative disc disease of the lumbar spine at present”); November 2018 Written Brief Presentation (relying solely on the Veteran’s symptoms and her belief of a causal nexus: “in the absence of affirmative evidence to the contrary, the Veteran’s statements should be considered at face value”). Although the Veteran’s service records (including the discharge examination) indicate a history of back pain and “chronic back pain,” the June 1999 discharge examination indicated the spine was normal. After discharge, the record does not reflect that the Veteran had a continuity of back symptoms warranting treatment. See June 2013 VA Examination (“NO recent [treatment] for this condition per [history given by Veteran].”). In fact, the first documented complaints of back pain warranting treatment came many years after the Veteran’s discharge. Moreover, there are post-discharge medical records that document the absence of continuous symptoms of arthritis of the lumbar spine (primarily alleged as pain and decreased range of motion). See April 2013 Private Treatment Record (“Back: Normal curvature, no tenderness, no CVA tenderness, painless range of motion.”). The evidence of record weighs against finding that the Veteran had a continuity of back-related symptoms from discharge to diagnosis of “mild DDD” in June 2013. The other avenue for establishing service connection is by demonstrating that the current disability is etiologically related to active service. The Veteran has offered her own lay opinion that there is a causal nexus between her in-service complaints/diagnoses of back issues and her current back disability. However, determining the existence of any such link would require epidemiological, scientific, and/or medical knowledge and experience. The record does not reveal that the Veteran has the education, training, or experience that would equip her to conduct the scientific and medical analysis necessary to reach a reliable opinion on causation. The Board finds that her etiological opinions are not competent evidence of a causal nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The available, competent medical opinions are against the Veteran’s claim. The June 2013 VA examination included a diagnosis of “mild DDD” of the lumbar spine, a thorough medical history (which accurately noted both the documentation of in-service pain and the Veteran’s report of “a [history] of lumbar pain since the early 1990’s with no specific injury”), and a detailed physical examination (to include review of x-ray imaging results). The VA examiner opined that the Veteran’s back disability was not caused by or a result of her military service, but is, instead, age-related. The examiner explained that, although the Veteran was seen and treated in the service for a lumbar strain, there was “no evidence of any… DDD of the lumbar spine” during service. The examiner also noted that a chronic condition was not documented in the medical records. Her opinion was also supported by review of the medical literature. There are no favorable medical opinions by medical professionals or others competent to provide probative medical evidence regarding the cause of the Veteran’s current back disability. The VA examiner’s opinion that the condition is age-related is not contradicted by any competent evidence of record. The greater weight of the evidence is against the Veteran’s claim of entitlement to service connection for a back disability, so the claim is denied. Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361   (Fed. Cir. 2016) (applying Scott to a duty to assist argument); November 2018 Written Brief Presentation (arguing on the merits and failing to raise any alleged failure by VA to fulfill its duties to notify and assist). Therefore, the Board needs to discuss VA’s compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kerry Hubers, Counsel