Citation Nr: 18126972 Decision Date: 08/16/18 Archive Date: 08/16/18 DOCKET NO. 13-21 017 DATE: August 16, 2018 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The Veteran’s back disability was not incurred during active duty or active duty for training (ACDUTRA) and is not otherwise related to military service; degenerative arthritis and degenerative disc disease of the lumbar spine did not manifest to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1981 to June 1988 and on ACDUTRA from May 21, 1993 to June 3, 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Board remanded the claim for further development. In September 2017 and April 2018, the Board requested expert medical opinions from the Veterans Health Administration (VHA), which were provided in October 2017 and June 2018. The Veteran was provided with a copy of the opinions and given 60 days to respond. See 38 C.F.R. § 20.903(a). 1. Entitlement to service connection for a back disability. The Veteran relates his back disability to a period of ACDUTRA in which he hurt his back during a training drill in May 1993. Service connection may be established for a disability resulting from injury or disease incurred during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Active military service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty. 38 U.S.C. § 101; 38 C.F.R. § 3.6. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence of a current back disability is not in dispute, as the Veteran has been diagnosed with lumbar degenerative arthritis and degenerative disc disease of the lumbar spine. See October 2015 VA examination report. Accordingly, the first element of service connection is established. Turning to the second element, in-service incurrence of a disease or injury, the Veteran’s service treatment records (STRs) reflect his complaints and treatment pertaining to his back. An October 1983 STR reflects that he complained of severe lower back pain, though he could not recall an injury. He also sought treatment for his back after sustaining injuries while on ACDUTRA in May 1993, and subsequently complained of persistent back pain. See June, July, September, and October 1993 VA treatment records; see also December 1993 VA examination report. As such, element two is also met. Regarding the last element, nexus, the only competent opinion of record is against the claim. (In this regard, the October 2015 VA opinion against the claim is inadequate for rating purposes). Specifically, the 2017/2018 VHA expert opined that it was less likely than not that the Veteran’s current back disability was caused by or related to service, including the period of ACDUTRA from May 21, 1993 to June 3, 1993. In support of his opinion, the expert, who acknowledged consideration of the Veteran’s history of back pain in service, as well as his assertions of continued symptomology since that time, explained that it was not due to any specific injury or incident in service. Regarding the back pain reported in October 1983, the expert determined that the Veteran had had a mild muscle strain that would have fully recovered, explaining that it was unlikely to be consequential, evidenced by the noted improvement after only two days, absence of a cause, and the Veteran’s ability to play basketball again in May 1984. Since it was merely muscle strain that would have fully recovered, the expert stated that any injury associated with his period of ACDUTRA in May and June 1993 would be a new and isolated injury. In considering the possibility that the 1983 presentation of back pain could retrospectively be attributed to an injury that occurred while working on a tank, the expert’s opinion did not change. Additionally, the expert noted that the Veteran was involved in a motor vehicle accident (MVA) in November 1984, in which he sustained a foot injury and required emergency services. Therefore, per the expert, if there had been a pre-existing, subclinical, or even a mild back problem, one would expect a motor vehicle collision severe enough to cause a lower extremity injury to also exacerbate any back problem. However, the expert found no evidence of exacerbation or reported back pain. The expert also opined that the Veteran’s current back disability was unlikely related to the March 1986 report of left hip pain following a fall, stating that a fall would not have aggravated his back in a way to be undetectable to his back and only result in hip pain that would then lead to his current back disability, and noted the Veteran was able to participate in Army drills in 1993. As for the ACDUTRA injury in May 1993, the expert stated that it was unlikely a disc herniation based on the negative straight leg raise test in December 1993 and noted that x-rays showed spondylolysis with a negative bone scan. He explained that spondylosis is a broad term to describe degeneration of the spinal column from any cause, though it typically refers to the age-related wear and tear, whereas spondylolysis refers to a stress fracture in the pars interarticularis of the spine, and that the “negative” bone scan is indicative for timing. He further elaborated, stating that in acute stress fractures or aggravation of a prior stress fracture, a bone scan would be expected to be positive, and “impending” fractures could also result in a positive bone scan, but once the stress fracture has healed, a negative bone scan would be expected, and although an exact timing of when the stress fracture is healed cannot be determined, case reports indicate that patients with 8 months of symptoms can continue to have positive bone scans. Thus, the expert opined it was likely that the spondylolysis occurred prior to 8 months, and therefore, prior to the May 1993 injury. However, he stated that it was unlikely the 1983 low back pain was associated with the spondylolysis, given that the Veteran was doing better after just a few days and other individuals are typically braced for 4 to 6 weeks before symptoms resolve. He determined that the back pain was most likely due to a severe muscle strain or ligamentous strain that would have been expected to heal completely, given no evidence of a disc herniation or acute exacerbation of the spondylolysis. The expert determined the Veteran’s back disability was also not due to his duties as a cannoneer or otherwise related to his active service. While considering his reports of “wear and tear” on his body, the expert stated that one would have expected a “premature” or “early” back disability relative to age or tobacco use, but that was not the case for this Veteran. As a final matter, the expert noted that the 1983 and 1993 incidents appeared to be modest in trauma, particularly in comparison to a MVA in 2007, which was associated with use of a back brace, and there was no evidence that the Veteran needed a back brace for any other injury before. The Board affords the VHA expert’s medical opinions great probative value. The expert considered the Veteran’s entire relevant medical history in forming his opinions, and provided thorough rationales with supporting data, as well as reasoned medical explanations. There is no competent opinion to the contrary. To the extent that the Veteran asserts that his back disability is due to active duty or ACDUTRA, the Board finds that he is not competent to do so, as the determination as to the etiology of such a disability is a complex medical question that is beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, there is no evidence that the Veteran’s degenerative arthritis and 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. Nor is there any competent and credible evidence of an in-service manifestation of arthritis to allow for service connection based on continuity of symptomatology. See Walker, supra. (Continued on the next page)   Accordingly, the preponderance of the evidence is against the claim of service connection for a back disability. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. See 38 U.S.C. § 5107(b). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel