Citation Nr: 18160709 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 17-00 758 DATE: December 27, 2018 ORDER Service connection for lower back disability is denied. FINDING OF FACT A causal relationship between any current lower back disability and an in-service incurrence has not been established. The preponderance of evidence is against a finding that any diagnosed back disability is etiologically related to any incident or injury incurred during active service. CONCLUSION OF LAW The criteria for service connection for lower back disability have not been met. 38 U.S.C. 1131, 5103, 5103A, 5107; 38 C.F.R. 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran has filed an informal issue of entitlement to service connection for depression as secondary to his lower back condition. A formal claim has not been filed, the RO has not issued a decision, and the claim has not been certified. The Board does not have jurisdiction over that claim. The Veteran should be sent a claims form to submit if he desires. While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board 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 a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for lower back disability Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.30. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. 1113(b); 38 C.F.R. 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. VA is to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. 1154(a). Medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. 3.159 (a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). The Veteran contends that a current back disability stems from low back injuries sustained during service. The Veteran’s October 1967 pre-induction examination showed that the Veteran had recurrent back pain prior to joining the Army. The Veteran’s October 1970 induction examination was normal with no evidence of abnormality. The Veteran’s spine and other musculoskeletal examination was found to be normal. The Veteran’s service medical records show complaints of and treatment for lower back pain three times while in the service, once in June 1971 and twice in July 1971. The Veteran’s service separation examination in August 1972 was normal and indicated no sign of any back disability. The Veteran’s spine and other musculoskeletal examination was found to be normal. Based on the evidence of record, the Veteran did not require additional treatment for back issues until March 2013. The record from that treatment does not address the existence or non-existence of any prior back problems and the Veteran was referred to a spine specialist. In April 2013, the Veteran visited a private spine specialist where he was diagnosed with lumbar disc degeneration, lumbosacral spondylosis, lumbago and chronic pain syndrome, all of which diagnoses continue to the present. The specialist did not opine as to the etiology of the diagnosed back disabilities. Following VA examination in February 2016, the VA examiner opined that current disability was less likely than not incurred or caused by in-service injury. The examiner noted that the Veteran had a normal physical examination at service separation in 1972. The examiner noted that the Veteran then had no documented chronic low back problems or continuity of care for the next 45 years. The examiner concluded that the Veteran’s current low back condition was caused by aging, genetic predisposition, and many years of strenuous employment after service. In support of the appeal, since this February 2016 VA examination, the Veteran has submitted a private treatment record from February 2017 that shows that the Veteran has a current diagnosis of lower back pain and that the Veteran believes that his back pain began in 1971 while serving in Germany. The Veteran has also submitted a self-written statement from December 2016, a February 2017 written statement from his wife, and a February 2017 written statement from an individual who served with the Veteran in the National Guard in 1977. Service connection may be established for a disability which began in service or was caused by some event or experience in service. While the service medical records show complaints, treatment, or a diagnosis similar to that claimed, the preponderance of the medical evidence supports the conclusion that a persistent or chronic disability was not present in service. The Board is mindful of the Veteran’s assertion that his lower back disability is related to an injury in-service. The written statements provided by the Veteran are considered lay evidence. The lay statements describing the Veteran’s low back pain are credible. The Board has considered the lay statements of the Veteran, his wife, and his fellow former servicemember. However, while they may be competent to report subjective symptoms, such as pain, they are not competent to provide a medical determination that a back disability was etiologically related to an in-service injury or event. There are different types of back disabilities and the Veteran, his wife, and his former fellow servicemember, as a lay people, do not have the training to identify the type of back problems present in service and after service, or to provide an etiological opinion regarding the causation of a current back disability. This matter is not one of lay observation but rather can only be established through objective clinical testing or observations. The Veteran, his wife and his service mate are not shown to have the medical training or knowledge to provide an opinion relating a back disability to service. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Among the factors for assessing the probative value of a medical opinion are the medical examiner’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993). The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The February 2016 VA examiner opined that it was less likely than not that the Veteran’s lower back disability was related to active service. The Board finds the February 2016 VA examiner’s opinion to be more probative than the Veteran’s assertions. The Board finds that the opinion of the February 2016 VA examiner is highly probative because it was supported by detailed rationale and provided by a trained medical professional, and also considered the available evidence of record. The VA examiner specifically identified and discussed the Veteran’s contentions and theory concerning service and his disability. The Veteran has not shown that he has specific expertise regarding pathology of orthopedic diseases and disabilities. To the extent that there is a conflict between the lay and medical evidence, the Board finds the observations of a skilled professional to be more credible and more probative than any lay assertions in this case. Accordingly, the February 2016 VA opinion is found to carry significant weight and the most persuasive evidence of record. The Veteran has not submitted any contrary competent medical evidence suggesting that any current low back disability is related to service or complaints of back pain during service. While the Veteran alleges a continuity of symptomatology, a VA examiner reviewed the record, noted the 45 year time period after service before additional treatment, and found that the back issues subsequent to service and at present were less likely than not related to service. The private treatment record recites the Veteran’s belief that his back problems were related to service, rather than a medical opinion relating any current back disability to service. A medical record that merely recites the Veteran’s subjective reported history does not constitute a medical opinion. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding of a causal connection between the Veteran’s service and the claimed low back disability. The Board finds that the February 2016 VA examiner’s opinion is the most persuasive evidence in this case as the lay opinions are not competent to opine as to the medical issue of causation. The Veteran has not submitted competent medical evidence to support a finding that a current disability is related to service. The most persuasive evidence indicates that the back injuries that occurred in-service in 1971 were resolved in full and are unrelated to a current back disability. The evidence does not show that arthritis developed within one year of separation from service or any continuity of symptomatology of arthritis of the back since service, as there was a gap in treatment and complaint following service. Therefore, service connection based on continuity of symptomatology or a presumption of service connection must be denied. The Board is appreciative of the Veteran’s faithful and honorable service to our country. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, because the preponderance of the evidence is against the claim for service connection for a low back disability, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk