Citation Nr: 18161265 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 13-17 166 DATE: December 31, 2018 ORDER Service connection for a lower back disability is denied. FINDING OF FACT 1. The Veteran has a current diagnosis for degenerative arthritis of the spine. 2. The Veteran experienced a low back injury while in service when he lifted heavy boxes. 3. Symptoms of the current low back disability were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service. 4. The Veteran’s back disability is not caused by or related to service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to May 1978. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma finding new and material evidence had not been received to reopen claim for service connection for lower back pain. The Board considered this appeal in September 2016, and remanded to afford the Veteran a Board videoconference hearing at the regional office (RO). The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in December 2016. A transcript of the hearing is of record. After the hearing, the case returned to the Board for further appellate review. In June 2017, the Board found that new and material evidence had been received to reopen a claim for service connection for a lower back disability, but remanded the issue finding that an opinion addendum is necessary for the examiner to discuss the Veteran’s complaints of experiencing lower back pain in service, and that the low back pain continued since service. The issue was brought back before the Board in February 2018, but unfortunately was remanded again due to the lack of substantial compliance to the previous remand directives. As such, the Board found another VA medical opinion addendum to be necessary. After the February 2018 remand, the requested actions were completed by the AOJ with no further action necessary to comply with the Board’s remand directives; therefore, the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Service connection for lower back pain is denied Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a claimed disability, there must be evidence of: (i) a present disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). A disease diagnosed after discharge may still be service connected if the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The record shows that the Veteran suffers from degenerative arthritis of the spine. The Veteran contends this disability is due to an injury sustained in service caused by heavy lifting while performing his duties as a 11B infantry. See Statement in Support of Claim July 2008. The Veteran’s service treatment records (STRs) confirm a low back injury in February 1978 after lifting heavy boxes. The diagnosis was low back muscle strain. See February 1978 STR. In March 1978, low back pain complaints continued. Tenderness and increasing pain in right flank, and painful movement were noted, along with a diagnosis of chronic back pain. See March 1978 STR. Additionally, in a March 1978 radiographic report it was noted that there was no evidence of trauma to the lumbosacral spine, but there was uniform biconcavity of the vertebral bodies which is sometimes seen in certain anemias, e.g. sickle cell. STR’s are thereafter silent to low back pain and symptoms, including the Veteran’s medical board examination prior to his discharge in April 1978. VA treatment records show several injuries and intermittent treatment since 1985. In January 1985, the Veteran was involved in a work accident where he was knocked over by a piece of machinery and hit the sacral area of his back. Soon after, consistent complaints of low back pain were documented. A few incidents include, March 1985 when the Veteran sought medical attention for back pain; October 1985, when it was reported that the onset of the Veteran’s back troubles dated back to January 1985, when he was involved in an accident on the job; November 1986 when the Veteran reported doing a lot of lifting on his job; and, October 1990, when the Veteran sought treatment for lower back pain after lifting a large buffer at work. Further, in January 2002, it was noted that the Veteran reported another back injury at work in 1999 while lifting bags of salt, and in December 2006, the Veteran stated he had an injury earlier that year when trying to drop a trailer, and it fell causing lower back pain. Notably, in December 2008, after complaining of lower back pain, the Veteran’s physical illness history noted a rear end collision in January 2008. In an October 2014 VA examination, the Veteran was diagnosed with degenerative arthritis of the spine. After reviewing the Veteran’s claims file, and conducting an in-person examination, the examiner opined that the back pain was less likely than not caused by the Veteran’s in-service injury. The rationale was based on the Veteran’s discharge examination being negative for any physical findings of a low back condition, and the post-service medical records being silent to low back pain until March 1985, around the time the Veteran injured his back at work, in January 1985. Further, though the Veteran complained of low back pain on active duty, there is no evidence of significant injury or chronic low back pain that occurred on active duty, as there is no evidence of chronicity of symptomology following active duty. Per record review, consistent low back pain complaints began after the January 1985 injury. Thus, the examiner concluded, there is no indication that the current low back pain is a result of the low back pain that occurred while on active duty. The July 2017 addendum VA medical opinion once again concluded that though the Veteran complained of low back pain on active duty there is no evidence of significant injury or chronic recurrent low back pain that occurred on active duty. The record is silent for low back complaints until 1985, and the complaints in 1985 were following an on the job injury. Therefore, the examiner opines that the Veteran’s current low back disability less likely than not had causal origins in active service, to include, as a result of the Veteran’s in-service complaints and treatment for low back pain. The rationale is that there is lack of evidence of a chronic low back condition while on active duty nor continuity of symptomatology that predates a 1985 documented low back injury, and thus a nexus is not established. In February 2018, the Board found the July 2017 addendum medical opinion failed to address the Veteran’s complaints as required by the June 2017 remand, and another addendum opinion was requested. A VA medical opinion addendum was provided in September 2018. After reviewing the Veteran’s case file, and considering his contentions concerning an in-service back injury, and the continuity of back pain since service, the examiner again concluded that the Veteran’s current low back disability less likely than not had causal origins in active service, to include as a result of the Veteran’s in-service complaints and treatment for low back pain. The rationale is that medical literature regarding degenerative arthritis is that it is a disease related to trauma and wear and tear over time, and though the Veteran complained of low back pain on active duty there is no evidence of significant injury or chronic recurrent low back pain that occurred on active duty, nor objective evidence of continuity of symptoms in the six years, following active duty. Instead, given the Veteran’s reported laboring occupations and the documented injuries- all resulting in low back pain per medical records, these were the most significant contributing factors to the current disability. Ultimately, the examiner reasoned that a nexus is not established between the current low back condition and the complaints of low back pain and treatment in-service. After reviewing the evidence, the Board finds that service connection is not warranted. Initially, the Board notes that the Veteran is diagnosed to have degenerative arthritis of the spine which is an enumerated chronic disease under 38 C.F.R. § 3.309 (a). There is no competent evidence of a compensable manifestation of arthritis of the lumbar spine within one year from service separation, nor is there a diagnosis of arthritis or degenerative arthritis of the spine confirmed by X-ray within that first post-service year. Moreover, service connection based upon chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) is also not warranted. The preponderance of the evidence is against a finding of continuity of symptomatology since service. Though the February 1978 STR describe the Veteran’s low back pain as chronic, the record shows low back pain complaints to be intermittent, and ultimately silent after April 1978, until January 1985, after the Veteran was involved in a work injury. Also, significantly, the Veteran’s separation examination found his spine to be normal. Although the absence of any mention of relevant complaints or symptoms after service is not dispositive, the fact of this chronology must be considered as it bears upon the question of nexus between the Veteran’s claimed disability resulting from service and his current diagnosis. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and can weigh against the claim). Ultimately, the Board is persuaded by the September 2018 medical addendum. Not only did the examiner review the Veteran’s claims file, but medical literature was referenced and considered, along with the Veteran’s contentions of an in-service injury and continuity of symptomology. Therefore, the examiner considered all pertinent and available medical facts to which the Veteran is entitled in forming the opinion, and found the current diagnosis unrelated to service. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board has considered the Veteran’s statements regarding his low back injury in service, and the continuity of symptoms until the present. Laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran maintains his current disability began in service and has continued since; however, while he is competent to describe pain, the Board finds his assertion as to continuity to be not credible. As described above, the Veteran’s statements are contradicted by objective evidence of record. Furthermore, to the extent to which he seeks to provide his own nexus, he is not competent to make this determination, nor to opine on his disability’s history and etiology. While pain, during and following service, can be objectively observed by the Veteran, he is not competent to find his current diagnosis is a continuation of the in-service diagnosis. As the VA examiner clearly demonstrated, the Veteran’s current low back disability less likely than not had causal origins related to the in-service injury, but rather began in January 1985, after a work injury, and following several other post-service low back injuries and incidents. These incidents include, two work injuries - one in January 1985 and another in 1999, a motor vehicle accident in 2008, and a job that requires frequent heavy lifting. Therefore, considering the foregoing information, there is no evidence of record that shows an etiological relationship exists between the Veteran’s in-service low back pain and his current disability. In sum, the competent evidence of record weighs against the Veteran’s assertion that his low back pain is etiologically related to his active service. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection for low back pain disability, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Russell, Associate Counsel