Citation Nr: 1827232 Decision Date: 05/03/18 Archive Date: 05/14/18 DOCKET NO. 11-23 776A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Asante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1979 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded in August 2015 to afford the Veteran a Board hearing, which was conducted by the undersigned Veterans Law Judge in February 2016. The appeal was remanded again in June 2016 for further development. In July 2017, the Board requested a Veterans Health Administration (VHA) expert medical opinion, with an addendum opinion requested in August 2017. In December 2017 and again in February 2018, the Board provided him a copy of both opinions and informed him of his right to submit any additional evidence within 60 days of the notification letters. No additional evidence was received; therefore, the Board will proceed with adjudication of this appeal. The issue of entitlement to service connection for tinnitus was raised by the Veteran during his February 2016 Board hearing. This issue is referred to the Agency of Original Jurisdiction for appropriate action, to include sending the Veteran a VA Form 21-526EZ to submit a claim, if desired. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT The Veteran's back disability did not have its onset in service and is not otherwise related to service; facet arthropathy or degenerative disc disease of the lumbar spine did not manifest itself to a compensable degree within one year post-service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veteran's Contentions The Veteran asserts that his back disability is a result of an in-service back injury that he incurred after spending 18 hours working in a four foot high underground space while maintaining aircraft arrestor gear. He maintains that he was treated at a military hospital during service and that his back pain continued post-service, which he self-medicated for until he received VA treatment in 2005. See February 2016 Board Hearing Transcript at 3. II. Applicable Law Service connection may be established for a disability resulting from injury or disease incurred in or aggravated during active service. 38 U.S.C. §§ 1131. Service connection may also 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). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For certain chronic diseases, including arthritis, service connection can be presumed without showing evidence of such disease having been incurred during a period of service, if the disease has manifested to a degree of ten percent or more within one year from the date of separation. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b). 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound and the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease was both preexisting and not aggravated by service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d at 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). III. Analysis Here, the Veteran's service treatment records (STRs) show that no back disability was noted upon entry on his entrance examination and the Veteran denied recurrent back pain on his Report of Medical History. See September 1979 STR. Additionally, other relevant evidence of record includes: the Veteran's February 1984 separation examination noting his reports of recurrent back pain secondary to sports since 1975; a May 2013 VA treatment record noting the Veteran's report of having back problems since he was 18 years old (prior to active duty); and the medical opinions of record that speculate on whether his back disability preexisted service. However, none of this evidence meets the onerous burden of demonstrating clear and unmistakable evidence that his back disability preexisted service, particularly in light of the fact that pain alone is not a disability for VA purposes. Thus, the presumption of soundness applies and the claim becomes one for direct service connection. See Wagner, supra (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). As to the first element of service connection, the Veteran has current diagnoses of facet arthropathy, degenerative disc disease, and broad based osteophyte of the lumbar spine. See June 2016 VA examination report. Thus, element one is met. Regarding element two, in-service incurrence of a disease or injury, the Veteran endorsed recurrent back pain on his Report of Medical History at separation from service and the examiner noted his last episode as having occurred in December 1983. See February 1984 STR. Moreover, the Board finds the Veteran's report of trauma to the back after spending 18 hours working in a four foot high underground space while maintaining aircraft arrestor gear (with his height listed as over 70 inches in his STRs), which is corroborated by a fellow serviceman, credible and consistent with the circumstances of his service. 38 U.S.C. § 1154(a); see also January 2017 Buddy Statement. Therefore, element two is also met as to an in-service injury. As to element three, nexus, the only competent and probative medical opinions of record are the August 2017 and November 2017 opinions from the VHA expert, who reviewed the Veteran's claims file and opined that it is less than a 50 percent probability that his current back diagnoses are due to service. In support of his opinion, the expert highlighted the Veteran's history of smoking and obesity and indicated that there is enough data in the literature to support a conclusion that the Veteran's current diagnoses are more likely caused by cigarette/nicotine use and wear and tear in a repetitive fashion over the years unrelated to service. The VHA expert acknowledged the Veteran's statements regarding his time spent in an underground space for 18 hours and stated he is not saying that the incident did not contribute to his back pain, but that there is not a 50 percent or more probability the incident caused any of his current back disorders. He indicated that the Veteran's psychiatric issues and substance abuse during and since service could have upregulated his pain receptors and, along with his smoking and obesity, supports his conclusion that the Veteran's back pain is not service-related. He also emphasized that the June 2016 VA examination report showed normal strength and reflex examination, which weighs against a finding of any functional disability. Lastly, he stated there is a 50 percent or more probability that the Veteran's back problems are more related to standard degenerative changes than being in the underground space during service. There is no competent evidence to the contrary. The Board acknowledges the Veteran's statements that his in-service back injury caused his current back disability however, the Veteran is not competent to opine on the etiology of his facet arthropathy, degenerative disc disease, or broad based osteophyte, as to do so requires specialized training and expertise. Additionally, there is no evidence that his facet arthropathy or degenerative disc disease of the lumbar spine manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease. Instead, the first evidence of either disorder is a diagnosis of degenerative disc disease over 20 years after service. See March 2005 VA treatment record. Additionally, absent any in-service findings in relation to the spine, there is no combination of manifestations sufficient to identify degenerative disc disease or facet arthropathy in service to allow for service connection based on continuity of symptomatology. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker, 708 F.3d 1331. As such, the preponderance of the evidence is against the claim thus, the benefit of the doubt doctrine does not apply and service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a back disability is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs