Citation Nr: 20009879 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-31 762 DATE: February 6, 2020 ORDER Entitlement to service connection for a lumbar spine disability, to include degenerative joint disease, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s lumbar spine disability, to include degenerative joint disease, was incurred in or otherwise related to service. CONCLUSION OF LAW The criteria for service connection for the Veteran’s lumbar spine disability, to include degenerative joint disease, have not been met. 38 U.S.C. §§ 1101, 1112, 1110, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1993 to November 1995. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The Veteran seeks service connection for her lumbar spine disability, which she alleges was caused by in-service back trauma. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the evidence of record, the service treatment records (STRs) include January 1994 clinical record for complaints of lower back pain she had been experiencing for 2 weeks. In February and March 1994, she received individual sick slips for complaints of back pain. In May 1994, she received treatment for back pain due to a fall and from moving heavy boxes and also received an individual sick slip and was placed on 1 week of no physical training for back pain. In November 1994, the Veteran was treated for back pain after playing “floor hockey” and she also received an individual sick slip and was placed on 2 weeks of no physical training for back pain. In June 1995, the Veteran received 3 individual sick slips for complaints of back pain and received treatment for back pain on 2 other occasions. Also, in June 1995, she received an X-ray on her back which revealed, “Other than spasm in the lumbar spine, no abnormality is seen in the lumbsacral areas.” In September 1995 she received an individual sick slip for back pain. The November 1995 separation examination report documents that the Veteran specifically responded “no” to “recurrent back pain;” and the spine was clinically evaluated as normal. In July and August 2000, the Veteran underwent physical therapy for her back. In May 2004, she received treatment for back pain due to “lifting something a week ago.” Also, in May 2004, she received treatment for back pain due to repositioning her ill father and she “felt something pop and began to hurt.” A May 2004 MRI of the Veteran’s back reflected a “right side disc herniation at the L4-5 with possibility of a loose fragment behind the body of the L4 vertebra.” In November and December 2008, the Veteran received treatment for back pain and stated that “she has injured her back on three different occasions.” In April and November 2010, she also received treatment for back pain. Also, in November 2010, she sustained injuries in a motorcycle accident. See Hearing Transcript. In October 2013, she underwent an MRI on her lower back which revealed degenerative disc disease, moderate disc osteophyte, a moderate disc bulge, and an “annular tear in the posterior margin of the L1-L2 disc.” A July 2014 VA examination report included a review of the claims file and medical records, a recitation of the Veteran’s complaints and medical history, and physical examination results. The diagnosis was degenerative arthritis of the spine. The examiner opined that the lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The detailed rational for the opinion included the following: Unfortunately there are no records available from the years immediately following military service. The veteran herself denied in writing any chronic back symptoms at the time of separation from the military. Medical records of the 2000's indicate several back injuries during those years (2000 to 2013) and imaging of the early/mid 2000's does not support a severity which would be seen if the condition had begun many years earlier during service. Her service treatment records show acute back symptoms and temporary sick slips but physical exam findings and documentation were negative for any permanent or progressive lumbar spine condition. So taken as a whole the medical records indicate that the veteran's current lumbar spine condition more likely than not had its onset after military service. While the veteran states that she first "herniated my disc" in 1994, I could not find any documentation to support this and it is well known that many kinds of back symptoms, from benign and self-limiting to severe, can cause severe symptoms in the acute phase. In July 2015, the Veteran received treatment for back pain and reported her back pain was increasing. In March 2016, she was treated for back pain due to a “lifting back injury this morning.” She also received treatment for back pain on 3 occasions in May 2016. During her third visit the examiner noted, “Degenerative disc disease and degenerative changes of the facet joints at L4-5 and L5-S1 as noted previously without significant change from a study dated 6/28/2013.” During the Veteran’s October 2019 Board hearing, she alleged that she fell from a 15-foot wall while in-service and that she has had chronic back pain ever since. Also, in October 2019, the Veteran’s daughter submitted a letter claiming that the Veteran’s health noticeably diminished after she was discharged from the military. The Veteran also alleges that after service “in the late 90’s” she received chiropractic treatment for her back; however, after making reasonable efforts, the VA has not been able to obtain these records. In December 2019, the Veteran’s private physician provided a letter explaining that “I have reviewed [the] Veteran’s] medical records dating from 1993 to the present as well as the contained physician statements and Ms. [REDACTED] account of her suffering. It is opined the Veteran’s current back condition is linked to an in-service incident. Specifically, the examiner stated: “I believe that Ms. [REDACTED] problems clearly began with the fall during an obstacle run in the 1990’s and has slowly but decidedly progressed with progressive degenerative changes with repetitive strains due to musculoskeletal instability from her injuries.” It was further opined that “Ms. [REDACTED] VA materials and medical records clearly show that her back condition both began and was further aggravated during her time in military service. Ms. [REDACTED] narration of events is documented as fact in her medical records.” The Board has reviewed all the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the preponderance of the evidence is against finding that the Veteran’s lumbar spine disability was incurred in or otherwise related to service. Because the Veteran’s lumbar spine disability has been characterized as arthritis, the Board first considers entitlement to presumptive service connection under the provisions of 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, consistent with the evidence described herein, presumptive service connection is not warranted because the Veteran is not shown to have been diagnosed with arthritis of the spine within one year of separation from service; nor is there competent and/or credible lay or medical evidence of continuity of symptomatology from the time of service separation until diagnosed with arthritis. Turning to direct service connection, the Board concedes the Veteran has a current lumbar spine disability and that she received in-service medical treatment for her back; thus, the Veteran has established the first 2 elements of service connection. Shedden, 381 F.3d 1163, 1167. However, the preponderance of the evidence does not support the finding of the third element; a nexus between her current disability and an in-service event. It is acknowledged that the Veteran has advocated a theory of entitlement for her lumbar spine disability due to an in-service fall. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight to which it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe her lumbar spine disability is related to active duty service, she is not competent to make such a determination, which is medical in nature. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge. These are matters which are not capable of lay observation. As such, the Board finds the Veteran’s contentions are of little probative value. The Board also acknowledges the Veteran’s nexus letter from her private physician; however, the Board finds the preponderance of the evidence weighs against the physician’s conclusions. The physician noted that despite the Veteran’s continued medical treatment, including the use of physical therapy, her back condition continued to progress through 2013. However, the physician did not explain what specific evidence was relied upon in making this determination. Indeed, what this opinion failed to address was the gap in supporting medical evidence from discharge from service until 2000; and the multiple reported back injuries that have occurred since active duty service. In point of fact, the evidence of record does not support that the Veteran continuously received treatment after service. During her Board hearing the Veteran produced a witness that works as a chiropractic assistant and said, “My boss supposedly has the [Veteran’s medical] records.” See Hearing Transcripts Page 10. However, on October 28, 2019, the VA reasonably attempted to retrieve these records; and the chiropractor’s office was unable to find her medical records or any record of her in their system. Furthermore, the witness alleged she has known the Veteran for “10-12 years,” placing their friendship beginning somewhere around 2008 to 2010. However, the Veteran alleged she received treatment from the chiropractor in the late 90’s.” Thus, the witness is not able to provide competent evidence the Veteran received treatment from that facility since she was not working there at the time the Veteran allegedly received treatment. Accordingly, absent evidence to the contrary, the Board cannot conclude the Veteran continued to receive treatment for her back between November 1995 and July 2000. Additionally, the physician’s report heavily relies on the Veteran’s account of her injuries. During her Board hearing, the Veteran alleged she made a mistake by checking the wrong box on her separation report of medical history in November 1995. However, in the Veteran’s June 2016 Form-9, the Veteran alleged she did not claim her back pain on her separation report of medical history because she did not believe it to be chronic. These conflicting statements raise doubts as to the credibility of the Veteran as an accurate historian of her medical history. Additionally, the private physician’s letter neither reconciled nor acknowledged the Veteran’s multiple reported back injuries that have occurred since service. Accordingly, since the physicians report relies heavily on the Veteran’s unreliable retelling of history, coupled with the unproven continuation of treatment and lack of reconciling the evidence of record; the Board finds the physicians opinion to be of little probative value. Lastly, the Board finds the opinion of the July 2014 VA examination report and opinion to be of great probative value because the conclusion is supported by detailed medical rationale that is consistent with the verifiable facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Here, the July 2014 VA examiner noted the Veteran’s 5-year gap of documented treatment for her pain and the intervening injuries she has incurred since service. Additionally, the Veteran’s in-service X-rays were negative for any permanent progressive lumbar spine condition and the early 2000’s imaging of her back did not support the severity which would exist if the injury had occurred during service. Accordingly, the Board finds the July 2014 VA examiner’s opinion to be more probative than the Veteran’s contentions and her private physicians’ opinion. For these reasons, the Board finds that a preponderance of the evidence is against a finding that the Veteran's lumbar spine disability is related to service or manifested within one year of separation. Accordingly, service connection for a lumbar spine disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.