Citation Nr: 1828992 Decision Date: 05/22/18 Archive Date: 06/05/18 DOCKET NO. 14-41 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a lumbar spine disorder. ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1988 to March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that the Veteran's appeal originally included the issue of entitlement to service connection for sleep apnea. However, the Veteran did not submit a substantive appeal for that particular issue following the issuance of a June 2016 statement of the case. Therefore, that issue no longer remains in appellate status, and no further consideration is required. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran has not been shown to have a lumbar spine disorder that manifested in service or within one year thereafter or that is otherwise causally or etiologically related to his military service. CONCLUSION OF LAW A lumbar spine disorder was not incurred in active service, nor may arthritis be presumed to have been incurred in active service. 38 U.S.C. §§ 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has not 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). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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 arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a lumbar spine disorder. During an April 1988 enlistment examination, a clinical evaluation revealed mild dorsal lordosis; however, it was asymptomatic, and the Veteran denied having a medical history of recurrent back pain. Therefore, the presumption of soundness applies for any diagnosis other than dorsal lordosis, and there is insufficient evidence to rebut that presumption. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In May 1989, the Veteran complained of low back pain with a duration of one day after taking out the trash and sliding on a piece of cardboard. A physical examination was normal, and he was diagnosed with a low back strain. He did not seek any follow-up treatment. Thereafter, at a March 1992 re-enlistment examination, the Veteran denied having a medical history of recurrent back pain. He reported that he was in good health and not taking any medications. Similarly, during a September 1992 physical examination, he described himself as in good health and did not report any past or present back problems, although he did report other problems. His spine was found to be normal. During a February 1995 overseas screening examination, the Veteran indicated that his health was "fair." His he reported a history of headaches, dizziness, sinusitis, chest pain, and a broken finger. However, he again denied having any history of recurrent back pain. In November 1995, the Veteran was treated for complaints of diffuse back pain. A physical examination was normal. The treatment provider did not observe any spasms or pain with movement, and he did not appear to be in pain. He was diagnosed with a musculoskeletal strain. In June 1998, the Veteran complained of pain in the mid-back area. He stated that he twisted his back while getting out of his rack the previous evening. He related a history of minor back injuries. The pain was non-radiating with no numbness or tingling. He was diagnosed with a middle back strain. In September 1999, the Veteran presented with complaints of back pain for the last two weeks. He stated that the pain began while playing basketball. It was described as a dull, non-radiating pain, which was made worse with running or prolonged standing. He denied having any prior history of back pain. Other than a slight decrease of range of motion on extension, the physical examination was normal. He was diagnosed with mechanical back pain. During an October 1999 separation examination, the Veteran's spine was found to be normal. The Veteran stated that he was in good health and not taking any medications. He also denied having any medical history of recurrent back pain. At another separation examination in March 2000, the Veteran again stated that he was in good health and denied any having a medical history of recurrent back pain, although he did note a history of headaches, dizziness, chest pain, indigestion, upset stomach, broken fingers, and a sore throat and sinusitis in the winter months. Thus, at the time of his separation, the Veteran did not have a lumbar spine disorder. The medical evidence also does not show that the Veteran had a lumbar spine disorder within one year of his military service. The record contains no indication that arthritis manifested to a compensable degree within one year of the Veteran's discharge from service. Arthritis must be objectively confirmed by x-ray. 38 C.F.R. § 4.61a, Diagnostic Code 5003. Indeed, there is no medical evidence that the Veteran was diagnosed with arthritis within the first year after his separation from service. Therefore, the Board finds that the Veteran's lumbar spine disorder did not manifest within one year of separation from service. As such, the Veteran is not entitled to service connection on a presumptive basis, either as a chronic disease during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3); 3.309(a); Walker, 708 F.3d 1335-37. Furthermore, the evidence does not establish continuity of symptomatology since service. 38 C.F.R. § 3.303(b). In this regard, the medical evidence does not document any complaints, treatment, or diagnosis of a lumbar spine disorder for years after his military service. In making this determination, the Board acknowledges the Veteran's lay statements that he has had back problems since service and that he did not have insurance to seek treatment until 2006. The Veteran is competent to report his experience and symptoms in service and thereafter. While lay persons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to state that he has lumbar spine problems that started in service and have been continuous since that time. However, the Board finds that the reported history in not reliable. His allegations are inconsistent with the contemporaneous record. As previously discussed, the Veteran did report back pain during his military service; however, that symptomatology appears to have resolved. In fact, at the time of his separation from service, the Veteran's spine was found to be normal, and he denied having a medical history of recurrent back pain. Thus, there is affirmative evidence showing that the Veteran did not have a lumbar spine disorder at the time of his separation from service. Moreover, after his separation from service, the Veteran first sought medical treatment for his back in July 2006, complaining of right-sided low back pain for the past two weeks. There was no recent trauma. He was diagnosed with a likely strain or sprain from irregular exercise. Thus, his own contemporaneous statements at that time indicate that he did not have continuous back pain since service, but rather a more recent onset. For these reasons, the Board finds that a lumbar spine disorder did not manifest in service or for many years thereafter. In addition to the lack of evidence showing that a lumbar spine disorder manifested during service or within close proximity thereto, the weight of the evidence of record does not otherwise link a current disorder to service. The Veteran was afforded a VA examination in May 2011 at which time he was diagnosed with pars defect and spondylolisthesis of the lumbar spine. He reported that he worked in the supply department and developed back pain in service, but he denied having any specific injury or trauma. The Veteran indicated that he was evaluated in service and told that he had pulled muscles. He noted that he continues to have intermittent low back pain. The examiner observed that there was no record any injury or trauma to the low back in service. Instead, the Veteran was diagnosed with musculoskeletal back pain, which is typically self-limiting. He also noted that there was no record of periodic treatment for back pain until many years after his military service and that the Veteran worked in two physically demanding occupations following his separation from service. In this regard, the Veteran had described his job as a juvenile corrections officer as physically demanding at times. He had also worked in metal fabrication, which required lifting thirty to forty pounds. The examiner stated that there was clear nexus and opined that the Veteran's lumbar spine disorder is less likely as not caused by or a result of his military service. There is no medical opinion otherwise relating a current lumbar spine disorder to the Veteran's military service, including any injury or symptomatology therein. The Board does acknowledge the Veteran's own statements that he has a current lumbar spine disorder related to his military service. However, even assuming the Veteran is competent to opine on this matter, the Board finds that the specific opinion of the VA examiner is of greater probative weight than the more general lay assertions in this regard. The VA examiner has training, knowledge, and expertise on which he relied to form the opinion, and he reviewed the claims file, performed a physical examination, considered the reported medical history, and provided rationale. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a lumbar spine disorder is not warranted. ORDER Service connection for a lumbar spine disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs