Citation Nr: 1825907 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 17-07 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a low back condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Vample, Associate Counsel INTRODUCTION The Veteran served from January 1965 to November 1966. He was awarded the Purple Heart as a result of his service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board notes that the issues of entitlement to increased ratings for an acquired psychiatric disorder and for residuals of a traumatic brain injury were also certified for appeal. However, the Veteran's VA Form-9 specifically appeals only the issue listed above. Therefore, despite what is contained in the Form-8, which certified the issues on appeal, only the above issue will be addressed. See 38 C.F.R. § 19.5 (2017) (VA Form-8 certification of issues to the Board by the RO is an administrative act that is not binding on the Board). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's low back condition was not shown during active service and is not related to active service. CONCLUSION OF LAW The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by a way of a letter sent April 2010. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, private treatment records, service treatment records, VA examination reports, hearing testimony, and statements from the Veteran. The Veteran has not notified the VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Service Connection The law provides that service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §3.303(a) (2017). In general service connection requires (1) evidence of in-service incurrence or aggravation of a disease of injury; (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 current disability. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009). Certain chronic diseases, including arthritis, may be presumed to have occurred in service if manifested to a degree of 10 percent within one year of service discharge. 38 C.F.R. §§ 3.307, 3.309(a). For the 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The Veteran is claiming that he is entitled to service connection for a low back condition that he contends was a result of a combat injury during his time in Vietnam. He reported that he injured his back in an explosion in Vietnam where he was hurled against a tank. Initially, the Board notes that the Veteran is in receipt of a Purple Heart, a Vietnam Service Medal, and a Vietnam Campaign Medal. Therefore, the Veteran is entitled to the application of 38 U.S.C. § 1154(b) for combat veterans. Section 1154(b) aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. His combat experience is well-documented and already forms the basis as the stressor for his service-connected posttraumatic stress disorder and shrapnel wound scars in his scalp and left thigh. However, while the Veteran's statements are credible in that he suffered an injury to his back while in service, the Board finds that his injury did not lead to a chronic back condition. Of particular note, the Veteran's service treatment records do not reflect complaints of, treatment for, or a diagnosis of a low back condition while in service. Significantly, his November 1966 separation examination was silent for low back complaints or symptoms related to a low back condition. As such, while there Board recognizes the Veteran's statements regarding a back injury, the evidence of record belies the conclusion that it resulted in a chronic disorder. In fact, the Veteran's post-service treatment records do not reflect symptoms of a low back disorder until many years after the Veteran left active duty service. In 2015, the Veteran was first diagnosed with scoliosis, degenerative changes, and arthritis. The Board notes that the Veteran's diagnosis was not until approximately 49 years after he left active service. Therefore, continuity is not established based on the clinical evidence. As part of this claim, the Board recognizes the statements regarding the Veteran's history of symptoms. In this regard, while the Veteran is not competent diagnose a disorder such as a degenerative disc disease and arthritis, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he and others are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is insufficient to warrant service connection on the Veteran's statements alone. The Veteran reported that his back pain has gotten worse over the years as he has gotten older. In this case, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a low back condition after separation from service as he was not diagnosed with a back condition until 49 years later. Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed disorder and either his active duty or his service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty or a service-connected disability, despite his contentions to the contrary. The Veteran alleges that he injured his back while in service when he was hurled against a tank while in combat. The Veteran was treated for shrapnel wounds to his scalp and left thigh. However, it does not appear that the injuries suffered during this incident are related to his current low back condition. Furthermore, the Board notes that the Veteran's treatment records do not reflect that his low back disorder is related to active duty, nor has any physician indicated that such a relationship exists. During a November 2015 VA examination the Veteran reported that he first saw a doctor about back pain in June 2015. The examiner noted a pelvic list of 5 degrees with negative slope going left to right, causing a lateral flexion of the spine at rest. He further noted no pain on exam, no muscle spasms, localized tenderness or guarding. Additionally, the examiner noted no current documented medical evidence of a diagnosed back condition. The Veteran was afforded a new VA examination in December 2016 and reported flare-ups on occasion with heavy lifting while working. An examination of the Veteran revealed no muscle spasms, no guarding that resulted in abnormal gait or abnormal spinal contour, and no IVDS. The examiner opined that the Veteran's low back condition was less likely than not incurred in or caused by the claimed in-service injury or event. In support of his opinion, the examiner stated that an X-ray of the Veteran's back showed scoliosis, arthritis, and multilevel degenerative disc disease which are more likely age related changes as opposed to as a result of the service injury. The examiner notes that the Veteran did not start having back problems until he worked at the post office, lifting heavy parcels over 60 pounds and it wasn't until ten years ago that his low back progressively started to worsen. Furthermore, the examiner opined that the Veteran's current back condition is less likely as not consistent with the circumstances, conditions, or hardships of military service. In adjudicating these claims, the Board has specifically considered the statements made by the Veteran relating his claimed disorder to service. The Veteran has stated that his current low back disability is due to injuries sustained when he was hurled against a tank during an explosion in Vietnam. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony as to the etiology of his low back disorder is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4. To the extent that the Veteran's statements in this regard are competent, the Board finds the specific, reasoned opinions of the trained health care professionals who conducted the VA examinations to be of greater probative weight than the Veteran's more general lay assertions. For the foregoing reasons, the Board finds that the weight of the competent evidence does not reflect a nexus between the Veteran's low back disorder and his military service. In reaching the above conclusion, the Board also considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable in this case. 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a low back condition is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs