Citation Nr: 1817554 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-36 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran had honorable active duty service during May 1974 and from October 1974 to June 1977. He also had service from June 1977 to November 1983, which resulted in an other than honorable discharge. A July 1985 VA administrative decision concluded that the Veteran's discharge was under dishonorable conditions for the period of October 8, 1977 through November 10, 1983, and therefore a bar to VA benefits for that period of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran appeared at a March 2017 Travel Board hearing, at which time he waived RO review of new evidence. FINDING OF FACT The Veteran's DDD of the lumbar spine was not caused by or incurred during a period of active service eligible for VA benefits. CONCLUSION OF LAW The criteria for service connection for DDD of the lumbar spine have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.12, 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Veteran waived RO readjudication of newly submitted evidence during the March 2017 Board hearing before the undersigned Veterans Law Judge. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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 active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Certain diseases like arthritis are considered chronic and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran contends that his DDD of the lumbar spine is the result of his active service, specifically, his duties as an Airborne Infantryman. He reports that he suffered severe trauma of the back due to repelling and parachuting from various forms of aircraft in varying weather conditions while training for duty. The Board has reviewed the Veteran's service treatment records (STRs). For the periods of service eligible for VA benefits, the Veteran's STRs contain entrance and separation examinations silent for complaints of and diagnoses of a back condition. The Veteran was afforded a VA orthopedic examination in June 2012. The examiner found the DDD of the lumbar spine was less likely than not due to active duty. The Veteran's STRs contained one documentation of back pain in January 1977, which was diagnosed as a pulled trapezius muscle, an upper back muscle. The examiner noted that the Veteran's duties as a paratrooper put a lot of vertical load on the spine, and VA treatments notes in May 2011 showed DDD of the lumbar spine, but the Veteran's current chronic condition was only documented since 2010. Prior symptoms were acute upper back problems, unlike the lower back symptoms currently experienced by the Veteran. Due to the lack of chronicity noted in service and for decades after service, the current DDD of the lumbar spine was found to be unlikely related to the complaint in service. During the March 2017 Board hearing, the Veteran reported receiving treatment in March 1984 after his November 1983 discharge from service, and his first diagnosis for DDD of the lumbar spine occurred around 2011. The Veteran's representative noted the Veteran's STRs contain three documentations of the Veteran receiving treatment for his back in service. Subsequent to the Board hearing, the Veteran submitted VA treatment notes from his acupuncture treatment in which the medical professional stated that the Veteran's DDD could possibly have been caused by the trauma of jumping from airplanes during his time in the military (this opinion is in an undated report (the top of the report is cut off, but it is pages 1-2 of 68) received in March 2017). The Veteran has a current diagnosis of DDD of the lumbar spine and military personnel records which support the Veteran's assignment to the 82nd Airborne Division; therefore, the remaining question for the Board is whether there is an etiological relationship, or nexus, between the current disability and service. The Board acknowledges the Veteran's contention of receiving medical treatment in service multiple times for his current back condition. However, the Board notes the STRs which document lower back pain and symptoms are dated August 1981, June 1982, and September 1982. This evidence is nonconsequential to the Veteran's claim of service connection, as VA has deemed this period of service to be dishonorable, and therefore not eligible for VA benefits. The Board is only able to examine evidence during eligible periods of active service, of which there is one documented instance of upper back pain. The Board also notes the Veteran's contention of receiving a favorable medical opinion during his acupuncture treatment. However, the opinion was speculative as it noted that the DDD was possibly caused by the Veteran's service. The use of the words "possibly" renders his opinion speculative. In this regard, the law provides that speculative medical opinions do not meet the required evidentiary standard for service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). As the speculative opinion does not meet the required evidentiary standard of equipoise, the Board affords the opinion minimal probative value. By contrast, the VA examiner found, after a claims file review, that it was less likely than not that the current disability was related to the Veteran's active service, to include his history as a paratrooper. The examiner based the opinion on the Veteran's lay testimony, STRs, and medical records after separation. Arthritis is a chronic disability listed under 38 C.F.R. § 3.309(a), eligible for service connection on a presumptive basis if the evidence shows chronicity during service, continuity of symptomatology since service, or if manifested to a compensable degree within one year of the Veteran's separation from service. The Veteran's STRs are negative for arthritis, and the Veteran was first diagnosed with DDD of the lumbar spine in 2011, approximately 34 years after separation from honorable service. There is no competent and credible evidence to support continuity of symptomatology since service, or evidence of the Veteran manifesting arthritis to a compensable degree by June 1978, one year from separation eligible for VA benefits. The Board again acknowledges the Veteran's lay contentions of an etiological relationship between the back condition and his active service. Regarding lay evidence, the Veteran is competent to describe symptoms but does not have the training or credentials to provide a competent opinion as to the etiology of his arthritis, a disability shown by x-ray per 38 C.F.R. § 4.71a, Diagnostic Code 5003. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly his lay opinion lacks probative value and is substantially outweighed by the VA examiner's opinion. As such, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for DDD of the lumbar spine is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs