Citation Nr: 19122913 Decision Date: 03/26/19 Archive Date: 03/26/19 DOCKET NO. 15-28 134 DATE: March 26, 2019 ORDER Service connection for a lumbar spine disability is denied. FINDING OF FACT The most probative evidence of record does not establish an in-service event, injury or disease, which may be associated with the Veteran’s claimed lumbar spine disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1990 to March 1992. In his July 2015 VA Form 9, the Veteran requested a hearing before the Board. However, in an October 2018 Statement in Support of Claim he withdrew his request for a hearing. As such, the Board has withdrawn his request for a hearing. 38 C.F.R. § 20.704(e) (2018). 1. The issue of entitlement to service connection for a lumbar spine disability. Laws and Regulations Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Analysis The Veteran contends that he has a lumbar spine disability stemming from his active duty service. Initially, the Veteran generally asserted that he suffered several injuries to his lower back in service without further information. See February 2013 Veteran’s Application for Compensation and/or Pension. Subsequently, in his May 2014 Notice of Disagreement, he described three incidents in service. First, he claimed that he fell off a personnel carrier in January 1991, which caused temporary paralysis to his arms and legs. Despite the severity of his injury, he was advised that his commanding officer was not going to document the incident. Then, in March 1991, he was involved in a motorcycle accident. However, he did not recall undergoing back X-ray studies at the time of the accident. In November 1991, he was involved in a rollover motor vehicle accident during a field training exercise. The vehicle was totaled after rolling down a 30-foot ravine. Id.; October 2018 Statement in Support of Claim. Although he requested permission to seek medical treatment, his commanding officer denied the request. Nevertheless, he indicated that given the severity of the accident it would have been documented in a report. He has stated that since this accident, he has suffered from back pain and has continued to received treatment for it. In assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms associated with his claimed lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, he is not competent to render a medical diagnosis of a lumbar spine disability or an opinion on such a complex matter as the etiology thereof. Id. Therefore, in this regard, the Board relies on the medical evidence of record. A review of the medical evidence of record establishes the Veteran has been diagnosed with intervertebral disc space narrowing at the L5-S1 with suspected degenerative disc disease following an imaging study of the lumbar spine in February 2014; 22 years post-separation. February 2014 S.M.C. Lumbar Spine Imaging Study. Notably, at the time of the imaging study, he described only two in-service incidents; falling off a tank and a rollover motor vehicle accident. There is no other medical evidence of record documenting any complaints or diagnoses of a lumbar spine disability prior to this treatment record. The Board notes that while the Veteran generally attributes his lumbar spine disability, at least in part, to the fall off a personnel carrier, the only injuries he has expressly described sustaining were to his arms and legs. Moreover, he never disclosed suffering from symptoms associated with the lumbar spine following this fall. The Veteran’s service treatment records (STRs) confirms that he was involved in a motorcycle accident in service in July 1991. At that time, he reported falling off a motorcycle. He complained of pain in the left foot, left knee, right and left elbows as well as his left hand. However, he did not disclose any complaints associated with his lumbar spine. Despite follow-up care for the injuries he sustained during the accident over the course of two weeks thereafter, at no time, did he report any complaints associated with his lumbar spine. Notwithstanding, the Veteran’s claims that he has suffered from back pain at least since November 1991 and has sought treatment for it, the remainder of STRs is devoid of any complaints associated with his lumbar spine. Even though in his May 2014 Notice of Disagreement, the Veteran indicated there would have to have been a report of the November 1991 accident given the severity of the same, the Board notes that all available STRs and service personnel records (SPRs) have been associated with the claims file. See April 2015 Response to Request for Information. A review of his SPRs is negative for any line of duty determinations or other records pertaining to an accident in November 1991. Considering the evidence above, the Board finds the Veteran’s contention the November 1991 accident was severe enough to be documented, but that he was denied medical treatment is not inherently consistent with each other. Further, the Board finds his lay statements are not consistent with the other evidence of record. Accordingly, the Board finds his lay statements are not reliable and accords them less probative weight than the other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Although the Board acknowledges the Veteran’s request in his October 2018 Statement in Support of Claim the VA obtain his unit records and line of duty determination associated with the November 1991 accident, based on the above, the Board finds there is no reasonable possibility that further VA assistance would substantiate the claim. 38 C.F.R. § 3.159(d)(2) (2018). Moreover, in addition to the lack of an in-service disease or injury, as discussed below, the Veteran’s claim is also being denied based on the absence of any indication of a nexus between his active duty service and current disability. The Board acknowledges the Veteran has not been afforded a VA examination with respect to this claim. Pursuant to McLendon v. Nicholson, a VA examination must be provided when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an event, injury or disease occurred in service, and (3) an indication that the disability or persistent or current symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Aside from the Veteran’s unreliable lay assertions that his current lumbar spine diagnosis was caused by the in-service incidents described above, there is no evidence of record indicating that the Veteran’s disability is associated with his active duty service. The Board has carefully considered the Court's language in McLendon that the threshold for showing this association is a low one. However, the Court's language makes it clear that there is in fact a threshold. Here, only the Veteran's contentions provide any suggestion of such association between his disabilities and service, and Board does not find the Veteran's contentions to rise to the level of the “indication of an association” referred to in 38 U.S.C. § 5103A or in McLendon. However, if a Veteran's mere contention, standing alone, that his claimed disability is related to his service or to a service connected disability is enough to satisfy the “indication of an association,” then that element of 38 U.S.C. § 5103A is meaningless. For this reason, the Board finds a remand for a VA examination is unnecessary. The Board notes that there is no dispute that the Veteran is competent to report experiencing back pain. However, he is not competent to provide an opinion on the etiology of his diagnosed spine disabilities. The etiology of the diagnosed disabilities on appeal is a complex question requiring medical experience. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board assigns no probative weight ot the Veteran’s assertions. The Board also notes that the February 2014 private X-ray study documents the Veteran’s report that he fell of a tank in 1991 while in the Army and that he was involved in a vehicle rollover accident. It does not suggest that these events occurred or that the Veteran’s current disabilities are related to these alleged in-service events. Instead, the record merely documents the lay history provided by the Veteran. See LeShore v. Brown, 8 Vet. App. 406 (1995). Accordingly, the Board finds the preponderance of the evidence does not support service connection for a lumbar spine disability. The probative evidence indicates the Veteran's back disability was not incurred in service and was not diagnosed until over 20 years after service, and there is no indication of a nexus between the Veteran’s current disability and his active duty service. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 C.F.R. § 3.102. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel