Citation Nr: 1817292 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-32 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The April 2011 rating decision found new and material evidence had not been received to reopen the claim of entitlement to service connection for a low back disorder. In April 2013, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In October 2014, the Board reopened the claim and remanded the issue of service connection for further development. A supplemental statement of the case (SSOC) was issued in May 2015. In July 2017, the Board again remanded the Veteran's claim and a SSOC was issued in December 2017, and the case has now been returned to the Board for further appellate action. The Board finds there has been substantial compliance with the October 2014 and July 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand. FINDINGS OF FACT The Veteran's low back disability, was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, and arthritis is not shown to have manifested within one year from the date of his separation from the military. CONCLUSION OF LAW The criteria to establish service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to 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 a duty to assist argument). II. Law and Regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Moreover, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2017). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. Clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Certain chronic diseases, such as arthritis, if manifest to a compensable degree within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With certain chronic diseases shown as such in service (or within the presumptive period under § 3.307), as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a 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. When the disease entity is established, there is no requirement of an evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that as an alternative to the nexus requirement, service connection for a chronic disease listed under section 3.309(a) may be established through a showing continuity of symptomatology since service). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). III. Facts and Analysis The Veteran is seeking service connection for a low back disability, claiming a back condition originated during service, specifically stating he fell off a truck and injured his back. There have been various accounts of a football related injury prior to service. The Veteran has stated he injured his back prior to service and reinjured it during service, and on other occasions the Veteran stated he was in a football related accident however he did not injure his back. In an effort to provide the Veteran with each theory possible of service connection, direct, presumptive and aggravation will be addressed by the Board. Service treatment records indicate that upon enlistment, his spine and musculoskeletal system were evaluated as normal. He reported a football related injury during high school, however did not elaborate as to what the actual injury was. Service treatment records do not contain a diagnosis of or treatment for a back injury, or of a documented fall. At a sick bay visit in 1966, he reported back pain. A September 1967 treatment note mentioned a history of venereal disease, a questionable urinary tract infection, low back pain and spasms. Lumbar spine series were ordered, and according to September 1967 results, the findings were normal. Upon examination in April 1968 for discharge from service, the Veteran specifically denied recurrent back pain. The spine and musculoskeletal system were evaluated as normal. In a September 1991 statement in support of his claim, he asserted getting injured in high school while playing football, but stated this did not result in a back injury or strain. He stated once again that he injured his back while in service when he fell from a truck. At a VA examination in 1990, the Veteran reported injuring his back in service. He was diagnosed with a lumbar strain. A September 1991, medical report from Dr. Haselkorn, reveals that the Veteran had been his patient for several years. The Veteran had worked as a bus driver, and had to sit for prolonged periods and frequently had to stop and stretch to relieve soreness and aching in his back. An impression of chronic lumbosacral strain was rendered. In 1992, the Veteran provided testimony before a hearing officer at the RO. He testified he sustained trauma to his back while lifting a roll of carpet during the course of employment, several months following discharge. He related that the football injury prior to service was minor and did not affect his back. He reported working installing carpets three weeks after leaving active duty, but that he injured his back while working. Later a statement from the carpet company was received, indicating the Veteran worked there around 1968-1970, and had resigned because he was unable to engage in manual labor because of back injuries sustained prior to that employment. Records from New Jersey Transit Bus Operations were received. In January 1986 the Veteran sustained an injury, and was treated for back pain. In April 1989, it was noted that he had severe low back pain following a charter drive to Washington the previous day. A note from 1991 documents the Veteran's reports of back spasms off and on since the accident of 1986. Columbia VAMC, and private treatment records detail a history of treatment for low back pain. Medical evidence from Palmetto Imaging shows degenerative changes of the lumbar spine in December 2009. A record from Jay Markowitz and Associates shows lumbago in January 2009, and from Dr. Reginald Parker shows low back pain in March 2010. In June 2011, a statement from Dr. Kristi Johnson, was received and provides a conclusion that the Veteran's reported treatment visits during service are likely to have contributed to his current clinical status. The cited evidence is the report of sport related back injury in 1962 with documented treatment, visits in May and, June, and July 1966 with notes of lumbar strain, and a September 1967 visit for back pain. The Board notes however, there are no documented treatment records in the file pertaining to a 1962 back injury. At the Board hearing, the Veteran reported that prior to service he injured his lower left back in a football injury. He did not seek any medical care prior to service. He then stated during service he injured his back when falling off a truck. In May 2015, the Veteran was afforded a VA examination. He reported the onset of low back pain several decades ago. He denied an injury during service. He sustained injury to the left costovertebral angle (CVA) in 1962 playing football. During service he was evaluated for a lumbar strain and CVA tenderness due to urogenital issues. On examination he had painful and decreased range of motion that resulted in functional loss. Diagnoses were listed as lumbar degenerative disc disease, lumbar facet syndrome and sacroiliac arthritis. The examiner concluded that his low back symptoms are less likely than not related to the low back pain he reported during service. The symptoms are due to chronic, degenerative changes and are not caused or exacerbated by the acute lumbar strain or urogenital complaints documented in service. It was also note he suffered a back injuries post-service in 1986, 1989 and again in 1994. An addendum opinion was rendered in August 2017. The examiner stated that there was no evidence of a chronic lumbar spine condition during the Veteran's time in service. His current lumbar spine muscle spasms are secondary to his chronic lumbar spine degenerative condition. The diagnoses of lumbosacral sprain, S1 radiculopathy, myofascial pain syndrome, and trigger point condition, are all multiple ways to note the same condition, which is muscle spasms. The examiner stated he does not have true radiculopathy, but sciatica from the documented sacroiliac arthritis. None of the Veteran's chronic conditions were present during service, or within one year of discharge. None of the aforementioned conditions are likely due to his time service. On this record, the Board concludes the evidence does not support the conclusion a back disability is related to service. There is no probative evidence that a chronic back condition arose during service, or that a back condition increased in severity during service. The Board is aware of the private positive opinion given by Dr. Kristi Johnson, however the most probative evidence of record are the VA examiner opinions. The VA examiner took the Veteran's entire health history into account, and provided competent and credible opinion consistent with the medical evidence of record, and the opinions included a detailed rationale based on the medical and lay evidence of record. Dr. Johnson did not address the Veteran's medical history in its entirety, taking in account the post-service reports of accidents in the course of his work. Furthermore, adequate rationale providing support for the conclusion rendered was not provided. As it pertains to direct service connection, there is no probative evidence of record that the Veteran suffered a back disability as a result of his time in service. The preponderance of the evidence is against direct service connection. Additionally, there is no credible evidence of record that the Veteran's degenerative arthritis manifested to a compensable degree within one year of the Veteran's discharge from service. Though there is a report of a back spasm in service, there are no records during the remainder of his duty in which he complained of continuing back problems. Upon discharge he denied any back condition. As such the in-service occurrence of a back spasm appears to be acute and transitory. As it pertains to aggravation, the Veteran has reported both being sound upon entry and having suffered an injury prior to service. The Veterans' entrance examination was normal, with no findings of a back condition, however the Veteran did report a football injury to his back for which he had treatments. Later through the course of the appeal the Veteran reported injuring his back prior to service and aggravating it during service, specifically falling off a truck. Again, as there is no evidence of an injury in service, or of an increase in symptoms, there is no basis to establish service connection by way of aggravation. The Board also is aware that the Veteran himself believes that his back disability is related to his service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, i.e., whether the disease process affecting the Veteran's back is etiologically related to service, such question falls outside the realm of common knowledge of a lay person as it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (providing that although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As such, the Board assigns no probative value to the Veteran's assertions that his currently diagnosed back disability is in any way related to his military service. The record contains no other evidence suggesting any possible linkage between a back disability and the Veteran's time in service. The most probative evidence is against the claim for service connection. As the preponderance of the evidence is against the claim, reasonable doubt does not arise; and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ MICHAEL KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs