Citation Nr: 1824232 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 12-35 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a lumbar spine disability (the back). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from March 1987 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of this appeal, the Appellant requested a hearing before the Board and was scheduled for a Board hearing in November 2015; he failed to report to his hearing. The hearing request is deemed withdrawn. FINDING OF FACT The most probative evidence of record shows that the Veteran's lumbar spine disability affecting is not related to his military service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his current lumbar spine disability was caused by general wear and tear incurred in the performance of his duties as a hydraulic technician aboard an aircraft carrier during active service. He described engaging in heavy labor, including repeated bending, stooping, heavy lifting and crawling. Service connection may be established 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran has documented degenerative joint and disc disease of the lumbar spine, as reflected on VA examination and treatment reports. Thus, the remaining question before the Board is whether his current back disability is related to service. The service treatment records show that in March 1991 the Veteran was seen for low back pain. No radicular symptoms were noted. While the Veteran denied a history of trauma, he related two prior episodes of back pain in the preceding 12 months. Reportedly, he was diagnosed with mechanical low back pain and treated with stretching exercises, over the counter medication and lifting restrictions for 72 hours. In September 1993 he was seen for upper back strain. On periodic examination in October 1993 the Veteran endorsed a history of infrequent low back pain from heavy lifting. The Veteran's spine was evaluated as normal and the examiner noted no chronic disability. On separation examination in July 1994 the Veteran's spine was evaluated as normal and he denied a history of recurrent back pain. Accordingly, the back complaints in service appear to have been transitory in nature and to have resolved with treatment. The Board finds that the service treatment records lack sufficient observation or even notation to establish any disability onset in service. After service discharge in October 1999, the Veteran, who was employed as a sheet metal fabricator/welder, sustained a work related back injury while climbing scaffolding. The injury resulted in acute back pain with radiculopathy. Imaging studies revealed large left L5-S1 disc herniation with marked S1 nerve root compression. The clinician diagnosed left L5-S1 disc herniation with a left S1 radiculopathy. The clinician noted a history of two prior back injuries without any radicular symptoms. The first occurred three years earlier when he woke up with significant back pain following a week of work. The symptoms resolved without medical intervention. The second episode of back pain occurred early in 1998 when he injured his back skiing. Following this incident he required a month off from work and physical therapy. He did not have any leg symptoms at that time. The Veteran underwent surgery in December 1999 for left sided radiculopathy due to a large herniated disc. Following the surgery he returned to work as a welder, however, the symptoms persisted and he required additional surgery. Based on the evidence noted above, the Board finds that a chronic lumbar spine disability was not shown in service, and arthritis was not shown in service or within one year following discharge from service. Accordingly, competent evidence linking the current disability to service is needed to substantiate the claim. On the question of medical causation, the weight of the evidence is against the claim. On VA examination in July 2011, the Veteran reported onset of back problems in service during the performance of his duties. He stated that after a full day of work his back would become painful. He treated the pain with over the counter medication. Following a review of the claims file and an examination of the Veteran, the examiner diagnosed degenerative disc disease of the lumbar spine with associated sciatica, and opined that the condition was likely than not caused by trauma incurred in service. Thereafter on VA examination in January 2014 the Veteran reported an on the job injury when he threw his leg over scaffolding which resulted in herniated disc at L5-S1. He eventually underwent a discectomy at L5-S1. Degenerative disc disease was diagnosed at the same time. The examiner opined that the back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. Instead, the examiner attributed the back condition to the post-service occupational injury, and other physical activity that contributed to the development of degenerative changes of the spine. A VA physician in July 2014 reviewed the claims file and opined that the Veteran's low back condition was not at least as likely as not due to military service. The physician explained that the service treatment records failed to document any traumatic events that could have predisposed the Veteran to later development of degenerative disc and/or degenerative joint disease of the spine. In addition, there was no evidence of chronicity of any back condition during active service. Instead, the evidence clearly showed that the herniated disc was attributed to the 1999 industrial trauma. The physician further noted that it was unlikely that wear and tear caused by physical activity in service could have caused his current lumbar spine disability because the Veteran was only in service seven years and the development of degenerative changes of the spine from general wear and tear, without a significant injury, would necessitate decades of very heavy physical activity. Moreover, it would also need to outweigh any wear and tear caused by other physical activity outside service, which was not the case here given the Veteran's occupational history post-service discharge. The Board finds the opinion of the VA physician in July 2014 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred the current back disability as a result of service. The physician's findings were based on a review of the evidence, including the service treatment records and examination report, which did not substantiate a finding that the Veteran sustained spine trauma or a disorder in service. The physician considered the complete record and the Veteran's contentions, and provided an explanation as to why the evidence does not support a finding that his current lumbar spine disability was due to service. Additionally, the VA examiner provided reasoning that is supported by the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the opinion is of significant probative value. Significantly, there is no competent medical opinion of record linking the current lumbar spine disability to service. The Board has considered the statements from the Veteran asserting that his current lumbar spine disability had onset in service. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history, but he cannot self-diagnose because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); See Jandreau, 492 F.3d at 1377, n. 4. The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current lumbar spine disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Additionally, to the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record. To the extent that the Veteran now claims onset of back problems in service, the service treatment records failed to document degenerative changes of the spine or a chronic lumbar spine disability, (while noting other problems, clearly indicating the Veteran's willingness to address problem he had in service with medical provides at that time) and on separation from service his spine was clinically evaluated as normal and he denied a history of recurrent back problems. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Thus, the Veteran has not credibly shown that his present complaints of back problems continued since service as this is inconsistent with the service treatment records, and thus, his assertions in this regard are afforded less probative value than is the VA physician's opinion. The physician has training, knowledge, and expertise on which he relied to form the opinion, and he provided a rationale for the conclusions reached. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against this claim. In summary, there is no competent evidence of arthritis of the spine in service or within one year following discharge from service. Thus, the provisions regarding continuity of symptomatology are not applicable. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2017). Moreover, the most probative and persuasive evidence is against a finding that his current lumbar spine disability is related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine disability. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107(b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 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 duty to assist argument). ORDER Service connection for a lumbar spine disability is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs