Citation Nr: 20007331 Decision Date: 01/29/20 Archive Date: 01/28/20 DOCKET NO. 19-25 923 DATE: January 29, 2020 ORDER Entitlement to service connection for a back disability, to include on a secondary basis, is denied. FINDING OF FACT The Veteran’s low back disability was not incurred in or caused by active service; and it was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1981 to June 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a October 2018 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Entitlement to service connection for a low back disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis. In this instance, the evidence must demonstrate an etiological relationship between a service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Initially, the Board notes that the Veteran was afforded a VA examination in October 2018. Although the VA examination did not provide a direct service-connection opinion with regard to the low back disability, the Board finds that a remand for a new VA examination is not necessary in this case. In this regard, the Board finds that the evidence does not reflect, nor does the Veteran claim, any in-service event, injury or disease related to his low back disability; indeed, the Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnosis related to a low back disability. Rather, the Veteran’s sole theory of service connection regarding his low back disability is on a secondary basis, as specifically due to his service-connected status post distal tibial injury with posttraumatic arthritis of the right ankle. The Board is mindful of Barr, but finds that in the absence of any established event, injury or disease in service, an examiner’s opinion linking the claimed disorder to service would have no evidentiary basis. Consequently, a remand to obtain another examination would do nothing for the appeal other than occasion a delay. VA medical records are silent for any complaints, treatment, or diagnosis for a low back disability. The Veteran was afforded a VA examination in April 2018 regarding his right ankle. At that time, the Veteran did not report any problems walking, although he indicated that his right ankle was painful and gave out at times. However, upon examination, the examiner only indicated mild pain in the right anterior ankle and decreased range of motion in the right ankle; no instability or disturbance of locomotion was noted by the examiner. At his October 2018 VA examination for his low back, the Veteran reported that he first sought treatment for his low back disability from a “civilian doctor” approximately five or six years ago and only saw him as needed. The Veteran reported that his right ankle had changed the way he walked and that he had problems with the whole right side of his body, including pain, stiffness, and decreased stability; the Veteran reported that he had constant low back pain with varying intensity and indicated that there were times when he had a burning sensation that ran down the back of his right leg. After a review of the claims file and the Veteran’s lay statements, the VA examiner opined that the Veteran’s back disability was less likely than not proximately due to or the result of status post distal tibial injury with posttraumatic arthritis right ankle, reasoning that there was no objective medical evidence to support a causal link between the Veteran’s complaints of low back pain and his service-connected status post distal tibial injury with post-traumatic arthritis right ankle. Initially, although VA medical treatment records reflect that the Veteran may have received treatment from a private physician for low back disability, neither the evidence of record nor the Veteran or his attorney has indicated that these records may provide any further evidence in support for the claim for service connection for a low back disability on a secondary basis. Moreover, neither the Veteran nor his attorney has identified the provider or the location of such treatment. The Board notes that the VA’s duty to assist extends only to obtaining relevant private records that the Veteran adequately identifies, and it remains the Veteran’s responsibility to provide evidence, including private treatment record, to support his claim. See 38 U.S.C. § 5103A(b)(1); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that such evidence was neither identified as providing a reasonable possibility of substantiating the claim nor was it adequately identified. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Therefore, the Board finds that VA’s duty to assist has been satisfied with respect to these records. After review of the evidence, the Board finds that the Veteran’s claimed back disability is neither related to his military service or to his service-connected status post distal tibial injury with posttraumatic arthritis of the right ankle. The Veteran does not claim, nor does the record reflect, that he had any symptoms related to a low back disability during, or on an ongoing basis, since service. The earliest evidence indicating the presence of a back disability is approximately a decade after his separation from active service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, a medical nexus has not been established between either a current diagnosis of a low back disability and military service or a back disability and a service-connected disability. The VA examination provides a negative nexus opinion regarding secondary service-connection for the Veteran’s claimed low back disability. The Board finds the VA examiner’s opinion highly probative in determining whether the Veteran’s low back disability was related to his service-connected disability. The VA examiner’s opinion was predicated on consideration of the Veteran’s lay statements and a review of the Veteran’s claims folder, as well as an in-person examination. The VA examiner nonetheless found it less likely than not that the Veteran’s low back disability was related to his service-connected disability. There is no medical opinion to the contrary. The Board has considered the Veteran’s statements that his low back disability is related to his service-connected status post distal tibial injury with posttraumatic arthritis of the right ankle. Although the Board acknowledges that the Veteran is competent to report his symptoms, to the extent that such assertions purport to establish the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson, 581 F. 3d at 1313; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Accordingly, the Board finds that the Veteran’s assertion is outweighed by the medical evidence of record. Thus, the weight of the evidence indicates that the Veteran did not manifest either a diagnosis of a low back disability within one year of separation from service or continuity of symptomology since separation from service, and neither a medical nexus between a current low back disability and active service or between a current low back disability and a service connected disability has been established. (Continued on the next page)   Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a low back disability on a direct or secondary basis. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.