Citation Nr: 1815166 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 11-08 239 ) 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 thoracolumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1980 through February 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Board remanded the above-listed issue for further development. That development having been conducted to the extent possible, the matter is again before the Board for appellate review. FINDING OF FACT The Veteran's thoracolumbar spine disability is not etiologically linked to any in service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's representative has contended that the September 2017 VA examination report is inadequate because the opinion did not offer an etiology to prove the Veteran's thoracolumbar spine disability was not service connected. However, as will be discussed further below, the Board finds the September 2017 VA nexus opinion to be adequate as the examiner noted the entire claims file was reviewed and opined it was less likely than not that the Veteran's current diagnosis of thoracolumbar spine osteoarthritis is etiologically related to his active duty service. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. The regulations pertinent to this decision (38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309) were provided in the January 2011 statement of the case and most recently in the December 2017 supplemental statement of the case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. The Veteran contends his thoracolumbar spine disability is etiologically related to his active duty service. Service treatment records indicate the Veteran reported back pain several times while on active duty. In January 1981, the Veteran reported that he experienced back pain stemming from an October 1980 motor vehicle accident. He reported that the back pain initially resolved, but had since worsened; he was diagnosed with a muscle strain. In June 1981, the again reported back pain and was diagnosed with a muscle sprain. Finally, he complained of back pain in July 1981 and was diagnosed with a muscle strain; later in July 1981, his back pain was diagnosed as mild, chronic signs and symptoms with no major pathology, mild muscle strains and spasms. At separation in February 1983, the Veteran initially reported experiencing recurrent back pain, but changed his answer. No evidence of spine or other musculoskeletal disabilities were noted on his February 1983 separation examination. Post-service treatment records note that in March 1998, the Veteran reported he had upper and lower back pain following an injury in service. In April 1998, the Veteran reported back discomfort for approximately a week and a half, but related it to lying on his back following abdominal surgery. A September 1999 VA treatment record noted the Veteran reported mid-thoracic back pain "off and on" for a couple of months and that he had experienced intermittent back pain for years. Physical examination reflected mild mid-thoracic tenderness and spasm. In November 2008, the Veteran denied any straining or injury to his back. X-rays taken in December 2008 noted the Veteran's spine had osteophytes with some mild narrowing. The Veteran underwent x-ray imaging again in April 2010, this time reflecting mild degenerative changes to his spine. Accordingly, the Veteran was not diagnosed with early degenerative changes of the thoracolumbar spine until at least December 2008. Therefore, the record does not reflect that the Veteran manifested arthritis to a compensable degree within one year of separation from active duty. There is also no evidence showing manifestations of arthritis during or within the first year after service. Thus, the presumptive service connection provision of 38 C.F.R. §§ 3.307(a)(3) and 3.309(a) for chronic disabilities are not applicable. The Veteran was afforded a VA examination in April 2016. The Veteran reported experiencing chronic back pain, but denied any specific injury to his back, and was unable to provide specific onset of symptoms. He reported that his back pain began not long after leaving the service, but he continued to work construction for more than 20 years with his back bothering him on and off. However, as the August 2017 Board remand found the nexus opinion to be inadequate, it will not be relied on, and the April 2016 VA examination is only incorporated to note the Veteran's reported history of his thoracolumbar spine disability. An October 2016 VA treatment record noted the Veteran reported that when he began active duty service, he was sent to paint the side of the ship, but was strapped in incorrectly. He fell over the side of the ship on to a "floating camel" and injured his back. He claimed he did not report this event for fear of getting whoever strapped him in incorrectly in trouble. The Veteran was afforded another VA examination to determine the etiology of his thoracolumbar spine disability in September 2017. The Veteran could not give the date of onset of his back pain, but reported it began when he fell from the ship and at the time it did not hurt that much. He reported that at the time of his fall, he experienced only a little soreness and had no further problems. Once out of service, he reported that his back pain progressively worsened and now he could hardly stand up straight, lie down, or sit for long periods of time. The examiner reviewed the Veteran's entire claims file and opined it was less likely than not that his current osteoarthritis of the thoracolumbar spine was related to his active duty service because during service, he had no significant symptoms and did not report any back disabilities on separation. The examiner opined that although the Veteran experienced minor back problems while in service, his osteoarthritis began after separation from active duty. The Board finds the September 2017 VA examination to be of probative value because, after reviewing the entire claims file and considering the Veteran's reported history, the examiner opined it was less likely than not that the Veteran's thoracolumbar spine osteoarthritis was related to his active duty service because he had no significant back injuries or disabilities while on active duty. That opinion is consistent with the treatment shown during service, which was intermittent and of an acute nature, such as a sprain. While the Board recognizes the Veteran's assertions that his disability is related to service and is competent to testify as to events that occurred in military service, the Veteran is not competent to conclude that any condition he has now, approximately 35 years later, is connected to his service. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, musculoskeletal issues, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Musculoskeletal issues require specialized training and medical diagnostic testing for a determination as to diagnosis, and they are not susceptible of lay opinions on etiology. There are many different possible musculoskeletal issues, and a layperson is not competent to diagnose among them or to provide an etiology. Therefore, the Board finds that the Veteran's statements of record cannot be accepted as competent evidence sufficient to establish service connection for his disability. Indeed, the first evidence of thoracolumbar spine pain after service was not until 1998, approximately 15 years after the Veteran's separation from active duty service. Significantly, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weigh against the claim for service connection. See Maxon v. Gober 230 F.3d 1330, 1333 (Fed. Cir. 2000). Although the Veteran initially reported he had back pain since an injury during service, he frequently reported his back pain was new. In April 1998, he reported back discomfort for approximately a week and a half and related it to lying on his back. In September 1999, he reported experiencing intermittent back pain for several years, but more recently in the past couple of months. Notably, the Veteran has been vague about the onset of his thoracolumbar spine problems in service. Although an October 2016 VA treatment record reflects he reported he was tethered incorrectly while painting the ship early in his service, this is the only time he related a specific incident that caused his back pain. He reported to both the April 2016 and September 2017 VA examiners that he fell while in service, but could not remember the date. In specific regard to the Veteran's disability, continuity of symptomatology under 38 C.F.R. § 3.303(b) is not shown, as there is no competent or credible lay or medical evidence of post-service symptomatology. The elements for service connection for a thoracolumbar spine disability have not been met. Accordingly, service connection for the claimed 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 claim, that doctrine is not applicable. ORDER Entitlement to service connection for a thoracolumbar spine disability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs