Citation Nr: 19170232 Decision Date: 09/11/19 Archive Date: 09/11/19 DOCKET NO. 10-32 420 DATE: September 11, 2019 ORDER Entitlement to service connection for a back disability, to include as due to service connected disease or injury is denied. FINDING OF FACT A back disability did not manifest within one year of active service and was not caused or aggravated by any aspect of service or service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to May 1971. The issue was most recently remanded in January 2018. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110 (2012). 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 diabetes mellitus type II; arthritis; and cardio-vascular renal disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability, comparing it to the current level of disability, and showing that the secondary condition was not due to the natural progression of a disease. 38 C.F.R. § 3.310(b). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a back disability, to include as due to service connected disease or injury The Veteran contends that she has a back disability due to her active service. In the alternative, the Veteran alleges that her back disability was caused or aggravated by her service-connected knee disabilities. The Veteran’s service treatment records do not include complaints, treatment, or diagnoses of a chronic back disability. The Veteran’s April 1971 separation examination determined that her spine was normal, and on a corresponding Report of Medical History form, the Veteran explicitly denied ever having back trouble of any kind. In October 1970, the Veteran reported having fallen and injured her left knee six years earlier prior to service and recently twisting the left knee requiring restricted duties and physical therapy. Clinicians noted that the current discomfort was non-traumatic. The records are silent for any traumatic injury that included the back. The Veteran attended a VA examination in November 1974. She did not report any back pain. She attended another VA examination in December 1976, and she told the examiner that she had occasional pain in the back and cervical spine. Upon VA examination in November 1982, the Veteran explicitly denied any back pain. In August 1983, the Veteran submitted correspondence contending that she had a lower back condition that was related to service. In May 1989, the Veteran submitted another letter, asserting that a mid to low back condition was entitled to service connection. September 2008 VA diagnostic testing reflects that the Veteran had degenerative changes consistent with her age, as well as suspect disc herniation. In April 2009 correspondence, the Veteran asserted that her back disability was due to her service-connected knee disability. In her December 2009 Notice of Disagreement, the Veteran explained that when she was on active duty she injured her back at the same time she injured her knees. She stated that the ruptured discs in her back occurred in service. On her July 2010 VA Form-9, the Veteran stated that she did report back pain in service but that it was not noted by the doctor. The Veteran underwent a VA examination in October 2010. She told the examiner that she believed when she hurt her knee in service, she also injured her back. The examiner summarized that Veteran’s back conditions as age related. The Veteran underwent an additional VA examination in November 2011. She again reported that she believed when she hurt her knee in service, she also injured her back. Following an examination and review of the claims file, the examiner concluded that the Veteran’s back disabilities were most likely related to her age, excess weight, and lack of exercise. She determined that the Veteran’s back conditions were not related to her knee disabilities. The Veteran attended another VA examination in August 2015. She again reported that she believed when she hurt her knee in service, she also injured her back. Following an examination of the Veteran and a review of the claims file, the examiner concluded that the Veteran’s back disability was less likely than not casually or etiologically related to her symptomatology in service. The examiner explained that while it was reasonable to assume that the Veteran hurt her back in service, the Veteran denied any back problems in service and her STRs do not reflect any sustained injuries. In an October 2015 addendum opinion, the examiner reiterated that the Veteran’s back disability was not related to service or a service connected disability. She also concluded that the Veteran’s knees would not have aggravated the Veteran’s back. In January 2016, the Veteran reported to VA outpatient clinicians that she had received relief from several months of chiropractic treatment following a motor vehicle accident that resulted in back problems starting four years earlier. Another VA examination was scheduled for and attended in February 2017. The examiner determined that the Veteran’s back disability was less likely than not related to service. He explained that medical records did not reflect back pain until many years after discharge. He also noted the lack of any documentation of back pain or injury in service. The examiner also determined that the Veteran’s back disability was not related to her knee disabilities, explaining that there wasn’t any peer reviewed medical literature describing knee arthritis as a cause of back degeneration, or as an aggravating factor. The examiner also mentioned the Veteran’s participation in activities like karate in July 2000. The examiner noted that the Veteran’s financial stress was likely aggravating her suffering. In conclusion, the examiner supported his determination that the Veteran’s back disability was likely caused by age by citing a study regarding the prevalence of disc bulges and age. An addendum opinion was obtained in February 2018. The examiner went into more detail regarding the Veteran’s description of when she hurt her back in service. He stated that popping sounds with lifting heavy weights typically arise from either tendons shifting or from the sudden development of gas bubbles in the joint fluid. He cited extensive medical literature to support this statement. Because the Veteran did not report any back pain for several years following discharge, it was less likely than not that the Veteran’s back disabilities were related to service, to include the popping sound she described in service. VA treatment records show continuous treatment for back pain. Aside from the Veteran’s contentions, there are no opinions which link the Veteran’s back disability to her service or service connected disabilities included in the claims file. The Veteran is not entitled to service connection for a back disability on a direct basis. The Board finds the culmination of all of the VA medical opinions to be of significant probative value. The examiners concluded that it was less likely than not that the Veteran’s back disability was related to service because the nature of the Veteran’s back disability relates more to age and weight. The examiners’ opinions are probative, because they were based on an accurate medical history and provided an explanation that contained clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran’s contentions that her current back disability is related to an incident in service in which she felt a popping sensation in her back. The Veteran, however, is not competent to provide a nexus opinion regarding this contention. The issue is medically complex and is therefore outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board finds the Veteran’s contentions outweighed by the February 2018 VA opinion which determined that the Veteran’s popping sensation was not related to her current disc bulge, and that the Veteran’s current back condition was more likely related to age and weight. Additionally, the Veteran is not entitled to service connection on a presumptive basis because the Veteran was not diagnosed with arthritis within one year of her discharge. The Board points to the Veteran’s April 1971 Report of Medical History form where she explicitly denied ever having back trouble of any kind, as well as the November 1974 VA examination, where the Veteran did not report any back pain. The Board finds the statements made at the time of her separation to be more probative than the statements she makes today, in which she reports back pain continuously from discharge. Lastly, the Veteran is not entitled to service connection for a back disability on a secondary basis. The Board finds the February 2017 VA examination and opinion to be of significant probative value. The examiner explained the type of back and knee disabilities suffered by the Veteran and why they were not related to each other. He also explained why the knee disabilities would not have aggravated the Veteran’s back condition. He reviewed medical literature and was unable to find any probative association. Again, the Board has considered the Veteran’s contentions, however she is not competent to provide a nexus opinion. Although the Veteran has established a current disability the preponderance of the evidence weights against finding that the Veteran’s current back disability is related to her service or secondary to her service connected knee disabilities and as such service connection is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.