Citation Nr: 20008455 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 08-31 310 DATE: January 31, 2020 ORDER Entitlement to service connection for a low back disability, to include L4-5 pinched nerve and degenerative disc disease is denied. FINDING OF FACT The Veteran’s current back disability, L4-5 pinched nerve and degenerative disc disease was not noted as chronic in service and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability, to include L4-5 pinched nerve and degenerative disc disease have not been met. 38 U.S.C. §§ 1101, 1110, 1137; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to July 1981 and from November 1981 to July 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from March 2004 and October 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In a March 2010 decision, the Board reopened and remanded the Veteran’s claim of service connection for a back disability for a medical opinion. In December 2015 the Board remanded this claim for further development. In April 2018, the Board then remanded this claim for the issuance of a supplemental statement of the case. 1. Entitlement to service connection for a low back disability, to include L4-5 pinched nerve and degenerative disc disease is denied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (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. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection for certain diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307(a)(3). If the chronic disease manifested in service or within the presumptive period, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Id. at 1338-39 (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself “establishes the link, or nexus” to service and confirms the existence of the chronic disease while in service or during a presumptive period). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition “noted” during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). The Veteran seeks entitlement to service connection for a low back disability, to include L4-5 pinched nerve and degenerative disc disease. He contends that his current lower back disability, identified as lumbar sprain with degenerative disc disease and mild bulging L4-5 and L5-S1 is a result of a back injury due to lifting a heavy pot of potatoes and table. See September 2007 Correspondence and June 1979 Service Treatment Records. In a February 2015 Disability Benefits Questionnaire (DBQ), the Veteran reported that in 1979 while in service he had a sharp low back and thigh pain when lifting a table. At this time, he was treated with medicine and bed rest. Id. The Veteran noted that he had severe muscle strain and spasms and that he has had pain whether sitting or standing. At the time, the Veteran noted that he was off from work for 2 days. The Veteran further noted that his back has intensified to a chronic state of debilitation over the years. The Board finds that while the statements by the Veteran regarding his back are believable, he lacks the necessary education, training, and experience to offer medical diagnosis or to provide an etiology opinion on the conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). With respect to element (1), a current disability, the Veteran has a low back disability. The Veteran was afforded a VA examination in February 2015. See February 2015 DBQ. The Veteran was diagnosed with lumbar sprain with degenerative disc disease and mild bulging L4-5 and L5-S1. The date of diagnosis is noted as 2015. With respect to element (2), in-service incurrence or aggravation of a disease or injury, the probative evidence of record indicates that the Veteran likely injured his back during service. The Veteran’s service treatment records (STRs) show that a qualifying event, injury, or disease had its onset during service. See STRs June 1979. STRs show treatment for a muscle spasm in lumbar region of the back and muscle skeletal strain. The STRs also note that while in service, the Veteran was injured in an accident when he fell off a moped while riding as a passenger. See STRs from February 1981 and June 1979. There was no evidence of arthritis or degenerative disc disease. The Board notes that the Veteran's service treatment records are silent for any diagnosis of a lumbar sprain with degenerative disc disease and mild bulging during service and arthritis was not shown within one year of the Veteran's separation. However, affording the Veteran the benefit of doubt, the Board finds that his testimony regarding his back injury and treatment of low back pain during service following the pain he felt when lifting a heavy pot of potatoes and table indicate that a low back injury may have occurred during service. As such, it finds that element 2, in-service incurrence of an injury, has been met. With respect to element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability, the competent, credible, and probative evidence of record weighs against a finding that the Veteran's current lumbar sprain with degenerative disc disease and mild bulging is etiologically related to service. In the February 2015 VA examination, the examiner opined the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. The examiner noted the Veteran’s reported history of his in-service back injury from 1979 and his account of reinjuring his back in a motor vehicle accident in 1996. The examiner specifically noted, “PE-suggests DDD and Note from 2011, “Chronic low back pain: S/P back injury in 79 then re-injured in an MVA in 96 pulling back in 2003. Seen by Neurosurgery, MRI 1-03 showed mild bulging L4-5 and L5-S1 without spinal stenosis… X-ray in 2002 showed “early degenerative disk disease of the fifth lumbar intervertebral space, this is consistent with injuries after service and age-related degenerative changes…” In October 2016 the VA examiner provided an addendum opinion, stating that “The degenerative disc disease lumbar spine was less likely caused/aggravated beyond a natural progression by the bilateral hallux valgus with bunions, pes planus, hammertoes, and dorsal and plantar calluses.” The examiner’s rationale was that the Veteran has symmetric gait, therefore the foot condition did not alter the gait and is less likely to have aggravate/caused the degenerative disc disease of the lumbar spine. For a medical opinion to be adequate, it must be based upon sufficient facts or data, the product of reliable principles and methods, and the result of principles and methods reliably applied to the facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Here, the February 2015 VA examination and October 2016 addendum is adequate as it was based on a full review of the Veteran's medical history and based on supported principles found within the field of orthopedic practice and treatment. The examiner cited to the Veteran's in-service report of back pain following lifting the table and potatoes. The examiner characterized the course of the Veteran's spine disability symptoms as developing after service. The Board notes that while the Veteran presented with back pain during service, he was not diagnosed with degenerative disc disease. In addition, in the Veteran’s separation examination, he denied recurrent back pain. See June 1984 Report of Medical History. Review of the Veteran's post-separation treatment records reveal that the Veteran appeared for treatment for feet problems at the Gulfport VAMC in September 2002, and stated that he had a back injury in a car wreck in 1995 and still has problems with that. See September 2002 Medical Treatment Report. In September of 2002 and June 2003, the Veteran visited the clinic for treatment of his low back pain. See September 2002 and June 2003 Medical Treatment Report. In 2004, the Veteran had a clinic visit for treatment after falling on a horse and complaining of back pain. See August 2004 Medical Treatment Record. The probative medical evidence of record weighs against finding that the Veteran's back disability was caused or aggravated by service. The Board has sympathetically reviewed the Veteran’s medical records and notes that the Veteran has continued treatment for a back disability; however, there is no positive etiology opinion linking the Veteran's degenerative disc disease of lumbar spine to service. Further, while pain in his back was noted in service, a continuity of symptomatology for a low back disability cannot be established as his current diagnosis of pinched nerve and degenerative disc disease is not listed under 38 C.F.R. § 3.309; accordingly, presumptive service connection is not warranted. As such, service connection for a low back disability is not warranted. The claim is denied. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.