Citation Nr: 20021435 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-41 848 DATE: March 25, 2020 ORDER Service connection for a back disability is denied. FINDING OF FACT There is no probative medical evidence that indicates the Veteran’s current back diagnoses were incurred in service. CONCLUSION OF LAW The criteria to establish service connection for a back disability have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1972 to December 1974. The case was remanded in March 2019 for evidentiary development. All actions ordered by the remand have been accomplished. In a March 2019 Board decision, the Board granted the Veteran’s claim of service connection for bilateral hearing loss. The issue of service connection for this disability is no longer in appeal status. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a back disability February 2003 x-rays indicated mild degenerative arthritis in the thoracic, lumbar and cervical spines, mild scoliosis in the thoracic and lumbar spines, and several compression fractures in the mid-thoracic spine of an unknown age. In March 2019 an MRI revealed degenerative disc disease (DD) and degenerative joint disease (DJD) of the lumbar and cervical spines, as well as intersegment joint dysfunction of the cervical, lumbar and thoracic spines. Service treatment records (STRs) do not indicate any complaints, diagnoses or treatments for a back disorder. The Veteran’s January 1972 report of medical history at induction indicates he denied recurrent back pain. His clinical musculoskeletal evaluation was normal. On the October 1974 report of medical history at separation, the Veteran again denied recurrent back pain. His clinical musculoskeletal evaluation was normal. The Veteran contends that during his participation in a training exercise in 1973 or 1974 he was hit from behind by someone observing the training exercise; that he lost consciousness after being hit from behind, and that he has had back pain since the incident. He further reported that he did not seek or obtain medical attention for his back pain during service. A review of the Veteran’s military personnel records does not indicate any corroborative evidence that the incident took place, including no line of duty or accident report. In addition, the Veteran’s STRs do not indicate any complaints, diagnosis or treatments for a back condition in service. The Veteran denied recurrent back pain at separation, and his clinical musculoskeletal evaluation at separation was normal. The contention that the Veteran experienced an in-service back injury is therefore not substantiated. In a September 2019 statement, the Veteran’s private chiropractor reported that the Veteran has received treatment for back pain since 2004, that the Veteran has ongoing chronic problems with his lumbar, cervical and thoracic spines, and that treatment has consisted of manual adjustments and physical therapy modalities. The examiner did not offer an opinion on the etiology of the Veteran’s various back disorders. At the November 2019 VA medical examination, the Veteran reported his claimed in-service injury but that he did not seek or receive medical attention. The examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine and reviewed relevant treatment records. The examiner noted that the first reported back pain complaint was in February 2004; that the Veteran’s body mass index (BMI) indicated obesity; and that he had worked as a logger in a sawmill for 35 years. The examiner also noted the Veteran’s lay statements regarding his in-service injury. The examiner found the Veteran’s back disability was less likely than not incurred in service because the Veteran did not complain about his back during service, his separation examination indicated he did not have recurrent back pain, and the first notation about a back complaint was in February 2003, over 29 years after discharge from service. The examiner further noted that the Veteran’s back disability was more likely than not a result of post-service occupational activities such as working in a sawmill for 35 years, obesity, aging and the activities of daily living over the Veteran’s lifetime. The preponderance of the evidence is against finding service connection for a back disability. There is no probative medical evidence that indicates the Veteran’s current back diagnoses were incurred in service. The Veteran has continuously asserted throughout the appeal that his current back disabilities are a result of his claimed in-service injury. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current low back diagnoses. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Arthritis requires specialized training for determinations as to diagnosis and causation and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnoses and its relationship to his service. (continued on next page) Since the Veteran’s current back disabilities were not incurred in service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.