Citation Nr: 1807741	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  11-24 735	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for a lumbar spine disability. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Mariah N. Sim, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Navy from June 1981 to April 1987. He also has reserve service from April 1987 to August 2001.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.
 
This case was previously before the Board in February 2017. At that time, the Board granted the Veteran reopening of his claim for entitlement to service connection for a lumbar spine disability based on receipt of new and material evidence, and remanded the claim of entitlement to service connection for a lumbar spine disability for further development. 

In March 2016, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of the hearing is included in the claims file.


FINDING OF FACT

The Veteran's lumbar spine disability was not due to or incurred by his active service, nor is it otherwise etiologically related to his active service. 


CONCLUSION OF LAW

The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).




REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  Initially, the Board notes that VA issued legally conforming VCAA notice letters.

Additionally, VA's duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (2017).  VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits in accordance with 38 U.S.C. § 5103A (2012) and 38 C.F.R. § 3.159 (c) (2017).  Relevant service treatment and other medical records have been associated with the claims file. Also, the Veteran was afforded a VA examination in December 2010, which is fully adequate for decision-making purposes.  Hence, the duties to notify and to assist have been satisfied.

II. Service connection 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). 

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relation i.e. a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

With regard to lay evidence, 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 the Veteran's military service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and causation.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 

First, the evidence of record shows that the Veteran has been diagnosed with a lumbar spine disability, and that he has continued to receive regular treatment for this disability. Thus, the element of a current disability is satisfied.  

Second, the Board notes that the Veteran has consistently stated his lumbar spine disability and injuries began during his active service. The Veteran's service treatment records indicate that he injured his lower back and was treated for the same during his active service. Further, he has submitted buddy statements from his wife and fellow servicemen who indicate the Veteran injured his lower back during his active service. The Board recognizes that the Veteran, his wife, and fellow servicemen are competent and credible to report observable symptoms of the Veteran's lumbar spine injury and disability, and the second element of in-service incurrence or injury is satisfied. Therefore, the Veteran's claim for entitlement to service connection for a lumbar spine disability turns on the matter of nexus. 

At a December 2010 VA examination, the Veteran reported that his lower back pain had its onset when he was lifting a locker and low back pain has been intermittent since 1983. He reported pain that shot down both his legs, causing him to stay in bed during any flare-ups. Upon examination, the VA examiner opined that the Veteran's lumbar spine disability was less likely than not etiologically related to his active service. The examiner noted that the Veteran had multiple complete physicals, which included a separation examination, where the Veteran repeatedly denied experiencing low back pain. The examiner further noted that the Veteran does have a well-documented disabling back condition from the prior 4 to 5 years, but that if related to his active service the multiple service examinations would have reported such a disability. The examiner based his opinion on medical expertise and medical literature. No other nexus opinion exists of record. Thus, the Board finds that service connection is not warranted here. 

The Board finds the December 2010 VA examination to have significant probative value here. The examiner reviewed the claims file, considered the Veteran's reported history and lay statements, and supported his conclusions with clear rationale. The examiner also addressed the Veteran's contentions in this case and relied on his expertise.  
  
The Board has considered the Veteran's lay statements and submitted buddy statements from his wife and fellow servicemen. The Veteran, his wife, and fellow servicemen are certainly competent to report observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, although they are competent to relate that the Veteran suffers from symptomatology of a lumbar spine disability, they are not competent to provide an opinion as to whether such symptoms are attributable to service, as this is a complex medical determination based upon internal medical processes.  It is not capable of lay observation. The Veteran has not contended, and the evidence does not show, that he has the medical expertise to provide such opinions.  See Jandreau, 492 F.3d at 1377; Layno, 6 Vet. App. at 465.
	
The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29   (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination).


ORDER

Entitlement to service connection for a lumbar spine disability is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs