Citation Nr: 20007871 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 12-06 890 DATE: January 30, 2020 ORDER Entitlement to service connection for a low back disability (claimed as arthritis in back) is denied. Entitlement to service connection for celiac disease is denied. FINDINGS OF FACT 1. The Veteran’s low back pain did not originate in service or within one year of discharge therefrom and is not otherwise etiologically related to service. 2. The Veteran’s celiac disease is not etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for celiac disease are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1983 to April 1986. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). On his substantive appeal, the Veteran initially requested the opportunity to testify before a member of the Board. In October 2014, the Veteran withdrew that request. The Board finds that no deficiencies in the duty to notify or assist are otherwise apparent from the record. In this regard the Board points out that a VA examination is not necessary for the issue of service connection for celiac disease decided herein, as the record does not establish that the Veteran suffered any in-service event that led to his celiac disease, for reasons discussed in greater detail below. Absent competent evidence of an in-service event, or that the Veteran’s current disability is otherwise related to service, there is no obligation to provide the Veteran with a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also VAPOGCPREC 27-97, 72 Fed. Reg. 63604 (1997); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption for certain chronic diseases, to include arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” If there is not sufficient evidence that the currently diagnosed chronic disease was chronic in service or within a presumptive period, a veteran may still be entitled to presumptive service connection if continuity of symptomatology is demonstrated. 38 C.F.R. § 3.303 (b); See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a). 1. Entitlement to service connection for a low back disability. The Veteran’s current treatment records reflect a diagnosis of spondylosis of the lumbar spine, as such the first element of service connection, a current disability, is met. Turning to the second element of service connection, in-service incurrence or aggravation of a disease or injury, review of the Veteran’s service treatment records reveled that the Veteran was seen December 1985 for lumbar paraspinal tenderness. There are no other lower back complaints, diagnosis, or treatment present in his service treatment records. The Veteran, however, also states that he slipped and fell on his back when handling a 300-pound Howitzer spring. The question for the Board is whether the Veteran’s current low back disability is related to the Veteran’s active duty service. Initially, the Veteran was afforded a VA examination in August 2009 to determine the nature and etiology of his claimed low back disability. The Veteran reported injuring his back handling a Howitzer spring. He also reported a 1992 diskectomy that the he underwent due to falling on his back while working at a construction site. The examiner found that the Veteran suffered from residuals of his lumbar diskectomy, as such not related to service. The January 2012 VA examination reported provided that the Veteran’s low back disability was not related to his active duty service. The VA examiner opined that lumbar spondylosis is a multifactorial condition with many etiologies. The examiner held that the Veteran’s post-service injury and subsequent medical operation are the root causes of the Veteran’s current back disability. In this case, as to the issue of whether the Veteran’s low back disability is related to his military service, the Board finds that the January 2012 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, and prior physical evaluation of the Veteran. Furthermore, the January 202 examiner provided a complete and thorough rationale in support of her opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s statements regarding his low back disability. All of which the Veteran is competent and credible to report and entitled to a degree of probative weight, however all the Veteran’s statements regarding symptomology pertain to the determination of whether a current disability exists. The Board acknowledges that the Veteran has a low back disability, but whether the Veteran has a current disability is not at issue here. The question for the Board is whether there is a nexus between his claimed low back disability and his active duty service. Regarding the presumption in favor of chronic diseases and the continuity of symptomatology, the Board notes that the Veteran has been diagnosed with degenerative arthritis. For VA purposes, diagnosis of degenerative arthritis is a chronic disease, thus warranting consideration under 38 C.F.R. § 3.309(a). However, in order for the presumption under 38 C.F.R. § 3.309 to apply the disability must manifest to a compensable degree within one year of discharge from service. However, in this case it appears that the earliest the Veteran sought medical treatment related to his low back disability was in 1992, when viewing the evidence in the most favorable light to the Veteran. In any case, the objective medical evidence indicates that the Veteran’s low back disability did not manifest to a compensable degree within one year of discharge from service. Since the Veteran’s degenerative arthritis did not manifest to a compensable degree within one year of discharge from service and there is no evidence of a chronic disability in service, the presumption in favor of chronic diseases is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The objective medical evidence ultimately outweighs the Veteran’s lay contentions that his disability is related to service. See Jandreau, 492 F.3d at 1372. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered an illness (bronchial asthma) was not competent evidence because matter required medical expertise). The preponderance of the evidence weighs against a finding that the Veteran’s chronic low back pain is causally related to his service. 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, service connection for low back pain is denied. 2. Entitlement to service connection for celiac disease. The Veteran’s current treatment records reflect a diagnosis of celiac disease, as such the first element of service connection, a current disability, is met. Turning to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Board notes that the preponderance of the evidence is against finding that the Veteran’s celiac disease was incurred or aggravated during service. The objective medical evidence of record fully supports that conclusion. The record does not support service connection for celiac disease. Review of the Veteran’s service treatment records documents no evidence of chronic complaints, treatment or diagnosis related to celiac disease while on active duty. The first evidence of celiac disease is years after service. The Veteran, however, has not provided specific details alleging any in-service event or diagnosis that could be related to his claimed celiac disease. At various points in the record, the Veteran has stated that he was sprayed with a substance during his service in Germany. The Veteran did not identify what this substance was, and beyond a conclusory allegation that this incident led to his celiac disease, there is no evidence of his being diagnosed with this disability or suffering from such symptoms during his active service. As discussed above, the service treatment records do not support the Veteran’s claim of onset of his disability during service. In fact, the Veteran was not diagnosed until many years after service discharge. The absence of post-service complaints, findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, any assertions that he may make as to onset during service with subsequent continuity of are not supported by the objective evidence of record. The objective medical evidence ultimately outweighs the Veteran’s lay contentions that his disability is related to service. See Jandreau, 492 F.3d at 1372. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered an illness (bronchial asthma) was not competent evidence because matter required medical expertise). Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service event, injury or disease, or that the Veteran’s celiac disease is causally related to his service. 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, service connection for celiac disease is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Higgins, 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.