Citation Nr: 1815199 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 11-31 364A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Alexander Panio, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2017, the Board remanded the case for additional development and it now returns for further appellate review. FINDING OF FACT A back disorder, to include degenerative disc disease and degenerative joint disease, did not manifest during active duty or within a year of separation and is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). While the Veteran disagrees with the findings of his September 2017 VA examination, which will be discussed herein, neither he nor his representative have alleged any other deficiency with respect to VA's duties to notify or assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis The Veteran has been diagnosed with degenerative joint disease and degenerative disc disease of the lumbar spine and contends that service connection is warranted for such back disorders. Specifically, he maintains that, while participating in a training exercise in April 1975, he was hit in the lower back with a wooden bench. He was also subsequently hospitalized for three days in January 1976 for meningitis, during which time he underwent a spinal tap in the same area of his previous injury. The Veteran and his spouse report that he continues to have back pain in the same area where the injury and spinal tap occurred. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Based on a thorough review of the evidence of record, the Board finds that the criteria for service connection for the Veteran's back disorder have not been met. As noted above, the Veteran meets the requirement of a current disability, having been diagnosed with degenerative joint disease and degenerative disc disease of the lumbar spine. The Veteran's service treatment records from his period of active duty are mostly unavailable and he has been so notified. However, records have been obtained from Portsmouth Hospital that show treatment for meningitis in January 1976. The record also contains statements from fellow soldiers who served with the Veteran in which they corroborate his report of sustaining a back injury following a training exercise. As such, the element of an in-service injury or event is established. The Veteran has stated that he has had continuous pain in his low back since service. In this regard, the Board has considered the Veteran's statements regarding such symptoms since service, but finds that the record does not demonstrate a pattern of chronic and continuous symptomatology. In this regard, the Veteran's file contains treatment records from his Reserve service following active duty, which include clinical examinations conducted in February 1982 and January 1984. Neither examination found any problems with the Veteran's spine. Furthermore, the Veteran's report of medical history concurrent with each examination shows that he denied any recurrent back pain. The record does not show treatment for back pain until October 2009, at which time the Veteran reported that his symptoms had a recent onset of only a few days. As such, the Veteran's statements regarding continuity of symptomatology are contradicted by his own reports during Reserve service and to medical professionals several decades later, and, as such, are afforded no probative weight. Therefore, presumptive service connection, to include based on a continuity of symptomatology, for a chronic disease is not warranted. The preponderance of the evidence is also against a finding of direct nexus between the Veteran's current back disorder and any in-service injury. In this regard, he underwent a VA examination in September 2017 to assess the relationship between his current back disorders and service. Following an examination and review of the record, the examiner opined that it was less likely than not that the Veteran's lumbar degenerative disc disease or degenerative joint disease were caused by his bench injury or treatment for meningitis. In explaining his rationale, the examiner noted several points, including that the evidence of record did not demonstrate chronicity of complaints, symptoms, or care for any back condition during service or since service until 2009. The examiner also noted that the Veteran denied back pain on physical examination after leaving service in February 1982 and January 1984, which further supports that the current lumbar conditions were not chronic residuals of his in-service back disorder. The examiner also noted that the Veteran's lower back injury due to being struck by a wooden bench in 1975 is not consistent with the development of lumbar degenerative disc disease, and there is no evidence to support a diagnosis of lumbar degenerative disc disease during service. The examiner also explained that there is no medical nexus for meningitis or the in-service lumbar spinal tap to cause lumbar degenerative disc disease or degenerative joint disease, especially as there is no evidence of any residuals or complications from the in-service treatment for viral meningitis. The Board finds the September 2017 opinion to be the most probative evidence on the issue of a nexus between the Veteran's current back disorder and service as it is clear, definitive, and supported by a complete rationale based on a review of the records and an in-person examination. The Veteran has disagreed with these findings and submitted an October 2017 private MRI in response. The MRI, however, only confirms the Veteran's current diagnosis of degenerative joint disease and degenerative disc disease. It does not invalidate any of the examiner's findings or otherwise demonstrate a link between the Veteran's current back disorder and service. In fact, as the MRI impression notes no compression or appreciable fracture deformity associated with remote trauma, it would seem to reinforce the examiner's opinion. Furthermore, while the Veteran and his spouse, as a lay people, are competent to report observable symptomatology, they lack the medical training and expertise necessary to provide a probative opinion on the medically complex issue such as the relationship between degenerative joint disease or degenerative disc disease and any in-service injury or treatment. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, while the Veteran and his spouse associate his current back disorder to service, they are not considered medically qualified to address such a question. Therefore, their opinions on such matter are afforded no probative weight. Consequently, the Board finds a back disorder did not have its onset during service, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of separation from active duty. As such, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a back disorder, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a back disorder s denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs