Citation Nr: 18161223 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-26 409 DATE: December 31, 2018 ORDER Entitlement to service connection for a back condition, including degenerative disc disease (DDD)/degenerative joint disease (DJD) of the thoracolumbar spine, with radiculopathy, is denied. FINDING OF FACT A chronic back disorder was not manifested in service; arthritis of the lumbar spine was not manifested in the first post service year; and a current back disorder is not otherwise shown to be related to service. CONCLUSION OF LAW The criteria for service connection for a back disorder, including DDD/DJD of the thoracolumbar spine with radiculopathy, have not all been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active from June 29, 1977 to September 23, 1977, and from August 1981 to August 1984. This matter comes before the Board of Veterans’ Appeals (hereinafter Board) on appeal from an August 2013 rating decision. The Veteran perfected a timely appeal to that decision. On June 8, 2018, the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the hearing is of record. At the hearing, the record was held open in order to allow the Veteran time to submit additional evidence relevant to his claim. The Veteran submitted additional evidence directly to the Board in July 2018, along with a waiver of initial agency of original jurisdiction (AOJ) consideration of this evidence. Accordingly, the Board may consider evidence in the first instance. See 38 C.F.R. § 20.1304 (2017). 1. Entitlement to service connection for degenerative disc disease/degenerative joint disease of the thoracolumbar spine with radiculopathy The Veteran maintains that he developed a chronic back disorder as a result of an incident in service. At his personal hearing in June 2018, the Veteran reported that he had a minor car accident in 1980 prior to entering on active duty, and he had some neck problems; however, he didn’t have any problems with his back when he entered active duty. The Veteran indicated that his MOS was as heavy-duty equipment mechanic. He noted that his duties required lifting and carrying heavy objects; in fact, the last two years of service, he was involved in rebuilding transmissions (very heavy lifting). The Veteran reported that his job also required changing tires on drop cranes, which weighed probably 300 or 400 pounds each; he also had to have help doing those. The Veteran related that he experienced pain in the entire spine from the base of his neck to the tip of his tailbone. The Veteran indicated that it is the same pain that he experiences today; in fact, it has gotten worse. 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 (2012); 38 C.F.R. § 3.303 (a) (2017). "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). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of DDD/DJD of the thoracolumbar spine with radiculopathy, and evidence shows that he was treated for muscle soreness (strain) in the neck and mid thoracic level while on active duty in April 1980 and muscle strain of neck in June 1984, the preponderance of the evidence weighs against finding that the Veteran's DDD/DJD of the thoracolumbar spine with radiculopathy began during service or is otherwise 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). Private treatment reports show that the Veteran was not diagnosed with degeneration of the thoracic intervertebral disc disease until September 2006, approximately 12 years after his separation from active service. While the Veteran is competent to report having experienced symptoms of chronic back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of DDD/DJD of the thoracolumbar spine with radiculopathy. The issue is medically complex, as it requires knowledge of musculoskeletal system. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the March 2013 DBQ/VA examiner opined that the Veteran’s DJD/DDD thoracolumbar spine with radiculopathy is less likely as not incurred in or caused by back injury that occurred during military service, and less likely as not aggravated by service. The examiner explained that no diagnosis of DJD/DDD of the thoracolumbar spine with radiculopathy is noted in service; he further noted that no back injury that occurred during military service that would likely result in his condition is identified, and no chronic aggravation is identified. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has also considered the Veteran's statements asserting a nexus between his DDD/DJD of the thoracolumbar spine and his military service. As a lay person, however, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of degenerative disc disease. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Further, the etiology of the Veteran's back disorder is a medical question involving internal and unseen system processes unobservable by the Veteran. As the record does not reflect that the Veteran has such understanding or ability to relate a back disorder to his in-service complaints of lower back and neck pain, any contention regarding the claimed relationship does not have probative value. The Board places great weight upon the March 2013 opinion of the DBQ examiner, in part, because a competent medical opinion on how a back disability is related to in-service finding of muscle strain in the neck and mid thoracic level requires expert understanding of anatomy and the largely unseen, unobservable mechanics within the musculoskeletal system. (Continued on the next page)   For all of the above reasons, the preponderance of the evidence is against a finding that there is a nexus between the Veteran's current back disability and his active service. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran's claim for entitlement to service connection. 38 U.S.C. § 5107 (b) (2017); 38 C.F.R. § 3.102 (2017). The appeal as to this issue must be denied. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs