Citation Nr: 18159289 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 05-15 254 DATE: December 18, 2018 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The Veteran’s current back disability did not have its onset in service and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 14, 1970 to March 2, 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a rating decision in August 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the Veteran’s claim in January 2007, March 2010 and June 2017. The Veteran appealed these Board decisions to the United States Court of Appeals for Veterans Claims (Court). In Memorandum Decisions dated December 2008 and January 2012, the Court vacated the Board’s January 2007 and March 2010 decisions and remanded the case to the Board for further adjudication consistent with the Court’s decision. In May 2018, the Court granted a Joint Motion for Remand vacating the June 2017 Board decision and remanding the matter for further adjudication. The Board also remanded this matter for further development in August 2009, December 2012 and October 2014. In May 2006, the Veteran appeared at a hearing before a Veterans Law Judge who is no longer with the Board. The Veteran has been provided an opportunity for a new hearing but has not requested that one be scheduled. Service Connection The Board finds that service connection for a low back disability is not warranted. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As an initial matter, the Board notes that although there is some evidence suggesting that the Veteran suffered a low back strain prior to service, no such disorder was noted on his entrance examination. As such, he is presumed to be in sound condition at entrance into service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The evidence is clear that the Veteran has a current back disability of degenerative disk disease, and that the Veteran reported back pain in service. See October 2009 VA Examination Report. The issue in this matter is whether the Veteran’s current back disability is related to the injury he sustained in service. The Veteran asserts that the rigors of his basic training, to include running on asphalt in boots, caused injury to his back, and that following the in-service back injury he developed chronic back pain. See May 2006 Board Hearing Transcript. During a July 2004 VA examination, the Veteran stated that during service he experienced a pop in his back, resulting in back pain and treatment with medicines in service. During an October 2009 VA examination, the Veteran again stated that he had back pain during basic training in service. He further reported that he has back pain on and off for many years. The most probative evidence of record supports a finding that the Veteran’s current back disability is not related to any injury or disease incurred in service. The Veteran’s service treatment records (STRs) show that in January 1970, about 3 weeks after he entered service, the Veteran complained of back pain. The physical examination at that time showed full range of motion of the back and the Veteran was found qualified for duty. X-rays of the back at that time were normal. In February 1970, the Veteran complained of back pain on a couple of occasions. The Veteran separated from service in March 1970. The February 1970 separation examination report shows a normal spine examination. The examiner stated that he reviewed the Veteran’s reports of a history of back pain as indicated on the February 1970 Report of Medical History, but that the Veteran “has not experienced a significant illness or injury since induction.” The Veteran was afforded VA examinations in October 2009 and January 2014. The October 2009 VA examiner opined that that there is no link or association between the Veteran’s mild degenerative disk disease of the lumbar spine and his 1970 complaints of low back pain in service. The examiner reasoned that there was no history of injury at the time. He further reasoned, “The degenerative changes in the lumbar spine are age acquired changes, more likely than not, not due to any trauma and certainly not due to the Veteran’s very limited military service.” The examiner further explained that there is no link to associate running or marching with his current low back condition. The Veteran was afforded an additional VA examination in January 2014. The examiner opined that the Veteran’s current degenerative disk disease of the lumbar spine is less likely as not related to any injury, disease, or event in service. The examiner reasoned that the Veteran had back strain in 1970 and x-rays were normal at that time. The examiner noted that the x-ray showing degenerative disk disease of the spine were completed more than 30 years after service. The examiner further stated that the Veteran was on profile most of the time he spent in service and did not engage in many activities due to his knee complaints. Thus, the examiner opined that the Veteran’s degenerative changes in the lumbar spine “are more likely than not related to age acquired changes and genetic predisposed.” The examiner found it less likely that the Veteran’s back disorder is due to trauma and further that it is “certainly not due to very limited military service due to muscle and lumbar sprain or strain usually resolved in short time and it does not lead to chronic condition.” The examiner noted that “a muscle strain is not directly associated to development of degenerative joint disease and the condition eventually resolves. In this case there is no evidence of back pain at the time of discharge or separation.” The examiner also gave a detailed discussion of the medical literature regarding muscle strains and lumbar sprains stating that they are the most common causes for low back pain. The examiner reported that when the lumbar spine is strained or sprained, inflammation of the soft-tissues results causing pain and muscle spasm that can last for weeks or months. However, over 90 percent of patients are completely recovered from lumbar muscle strain or sprain within one month. The examiner further explained that degenerative disk disease is mainly caused by the effects of aging on the spine. The Board finds the VA examiners opinions highly probative as to the key issue in this case of whether the Veteran’s current back disability began in service or is related to the injury he sustained in service. The VA examiners provided adequate rationales for their opinions, and their opinions were based on an examination and interview of the Veteran, as well as on a review of the service treatment records, the post-service treatment records and examinations, and the lay statements of the Veteran. The opinions considered an accurate history, were definitive and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the January 2014 VA examiner did state in part that there was no evidence of continuity of care for the Veteran’s back for years, and that the Veteran and his lay witnesses indicated that the reasons for this were (1) that the Veteran did seek treatment, but the records were destroyed and (2) the Veteran did not have health insurance between 1981 and 2004. See December 2009 Correspondence. Nevertheless, the January 2014 VA examiner’s opinion was based on more than just a lack of medical documentation in the file, but also consideration of the Veteran’s lay reports, the STRs and the pertinent medical literature. Thus, the Board finds this opinion adequate. The Board has considered the statements of the Veteran and his lay witnesses (wife, friend, and mother) that he has suffered from recurring back pain since service. See December 2009 Correspondence. The Board has also considered the lay statements noting that the Veteran sought treatment for his back in the 1970s that cannot be documented because the records were destroyed, and that the Veteran did not seek treatment between the 1981 and 2004 due to lack of medical insurance during this time. Id. The Veteran and his lay witnesses are competent to provide testimony concerning the symptoms they observed. However, they are not competent to offer an opinion that the Veteran’s recurrent back pain is related to the injury he suffered during service, which, under the facts of this case, is a complex medical issue requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Whether the symptoms the Veteran experienced in service or following service are related to his current disorder is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). Here, the Veteran and his lay witnesses are not competent to opine as to the etiology of the Veteran’s back disability because it is a complex medical issue that falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board has also considered the arguments of Veteran’s counsel in the November 2018 correspondence as to why the January 2014 VA examiner’s opinion should be discounted or supports the Veteran’s position. Counsel argues that although the examiner noted that most muscle injuries involving the back resolve, the Veteran’s did not resolve as evidenced by his reports of recurrent pain and the examiner’s explanation that anatomical changes in the spine lead to degenerative disease supports a finding of service-connection. See November 2018 Correspondence. With regard to the first argument, the Board observes that counsel assumes what is to be proven in this matter, that the Veteran’s back injury in service did not resolve. Although the Veteran has reported recurrent pain, that evidence alone does not support a finding that his muscle injury in service continued or that it developed into his current degenerative disk disease. Moreover, although the January 2014 VA examiner observed that small anatomical changes could develop into degenerative disk disease, this argument assumes that the Veteran suffered an anatomical change in service. The evidence of record does not support such a finding, particularly in light of the Veteran’s normal separation examination and normal spine x-rays in service. Thus, the Board does not find counsel’s arguments in this regard persuasive. Because the Veteran had less than 90 days of service, presumptive service connection for arthritis as a chronic disease manifested to a degree of 10 percent or more within one year from the date of separation from service does not apply. 38 C.F.R. § 3.307(a). In addition, the Veteran has asserted that his back disability is related to his Osgood-Schalatter’s disease of the bilateral knees. As these disabilities are not service-connected, consideration of service connection on a secondary basis is not warranted. In sum, the Board finds that the most probative evidence indicates that the Veteran’s current back disability is not related to service. As such, service connection for back disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that   doctrine 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). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tracie N. Wesner, Counsel