Citation Nr: 19136232 Decision Date: 05/09/19 Archive Date: 05/09/19 DOCKET NO. 13-01 087 DATE: May 9, 2019 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s low back disability is not related to his military service. 2. The Veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 2. The criteria for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1972 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. In December 2013, the case came before the Board and the Board remanded the Veteran’s claims for additional development. In February 2015, the Board issued a decision that denied the Veteran’s claims. Subsequently, the Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In a decision in March 2016, the Court vacated and remanded the February 2015 decision. The Court’s March 2016 decision found the Board’s February 2015 decision to be erroneous because the Board relied on an inadequate medical report. Specifically, the Court found that the examination that the Board relied on did not appropriately consider the Veteran’s lay statements that his back was injured in June 1972 while operating a buffing machine, nor did the Board properly consider his lay contentions of continued symptomatology following service. In June 2017, the case returned to the Board. At that time, the Board remanded the Veteran’s claims in order to obtain a medical opinion regarding the scope of the Veteran’s reported in-service injury. In February 2018, the case returned to the Board. At that time, the Board found that the medical opinion that was obtained following the June 2017 remand was inadequate because the examiner essentially restated his rationale from his previous opinion and continued to omit the Board’s concession that the Veteran did suffer from a low back injury during service. Accordingly, the Board remanded the Veteran’s claims for an additional medical opinion. 1. Entitlement to service connection for a low back disability The Veteran contends that his low back disability is due to his military service. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (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 Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2018). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As to a current diagnosis, the Board notes that the Veteran’s condition has been diagnosed as degenerative disc and joint disease with left lower extremity radiculopathy. The Board further notes that the Veteran’s condition has also been diagnosed as intervertebral disc syndrome (IVDS). As to the in-service incurrence, the Board notes that the Veteran reported to VA that “my injury happened when I was ordered to operate a buffing machine to assist in the cleaning of our barracks. I never ran a buffing machine before that date.” The Veteran went on to state that “the handle of the buffing machine swung around and hit my back at a very high rate of speed and hit me in my lower back causing a great deal of pain. When I reported the incident, I was told to suck it up.” The Veteran concluded his statement by stating that “since that day my back has bothered me. The pain was always there I assumed it would go away but it never did, as time went on over years I as unable to lift anything heavy without getting a sharp pain in my lower back.” Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in December 2018. The Veteran reported to the examiner that when he was in the Navy, he was using a buffing machine and the machine hit him in the back. The Veteran added that the handle bar went into his back and that caused him to fall on his buttocks. Following the examination, the examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or disease. The examiner opined that “assuming that an undocumented back injury occurred during service in the manner the claimant states (hit in the back with a buffer machine handle causing fall onto buttocks) that mechanism of injury is not consistent with the current diagnosis either by direct causation or predisposition.” The examiner went on to state that a direct blow to the back would be more likely to cause a spinous process fracture since that is the structure that would absorb the impact. There is no evidence of such a fracture. The examiner added that a fall directly onto the buttocks would be more likely to result in a coccyx fracture since that structure would first experience the impact. There is no evidence of a coccyx fracture. The examiner further opined that it is also medically improbable that either injury would predispose to development of a later disc herniation because most disc herniation is caused by vertebral body loading injuries in the presence of weakened annular support. The described injury does not result in increased vertebral body loading and weakened annular support fibers would be extremely unlikely to be present in the teen years. Lastly, the examiner stated that “Social Security records showed there is a history of other significant back injuries dating from 1987 that do involve loading and those injuries plus obesity are more likely to have resulted in the currently diagnosed conditions.” The Board finds this medical opinion to be highly probative as the doctor reviewed the Veteran’s medical history, interviewed the Veteran, examined the Veteran, and then provided a thorough and well-reasoned opinion that specifically addressed the Veteran’s contention as to how he injured his back. Accordingly, the Board has placed significant probative weight on this opinion. In sum, the Board finds that service connection for a low back disability is not warranted. The Board has considered the Veteran’s lay assertions; however, the Veteran’s lay statements are outweighed by the findings of the VA examiner because the VA examiner has the medical training and expertise to provide an opinion regarding the nature and etiology of the Veteran’s disability. Accordingly, the Board finds that the most probative evidence of record is the December 2018 VA examination opinion which concluded that the Veteran’s low back disability was not related to his military service. Thus, for the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for a low back disability, diagnosed as IVDS, and degenerative disc and joint disease with left lower extremity radiculopathy, must be denied. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) The Veteran asserts that he is unable to obtain and maintain substantially gainful employment due to his low back disability. Total disability ratings may be assigned, where the schedular rating is less than total, when the disabled Veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In other words, the Veteran must be service connected for at least one disability for a TDIU to be warranted. As service connection for the Veteran’s claimed low-back disability is not warranted, the Veteran is ineligible for consideration for a TDIU. He is not service-connected for any disability. Thus, as there are no service-connected disabilities, the claim of TDIU must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). As such the benefit of the doubt doctrine is inapplicable, and the claim for TDIU must also be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.