Citation Nr: 20021577 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-37 978 DATE: March 26, 2020 ORDER Entitlement to service connection for a low back disorder is denied. FINDING OF FACT A chronic low back condition did not manifest in service or to a compensable degree within one year of separation from active service; credible evidence of continuity of symptomatology has not been shown. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded the case for further development. Entitlement to service connection for a low back disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis manifesting to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran and his representative assert that service connection is warranted for degenerative arthritis of the lumbar spine. The Veteran claims he injured his back while on active duty and this resulted in his current disability of degenerative arthritis of the lumbar spine. On a pre-induction report of medical history completed by the Veteran in January 1967, he checked yes to whether he now had or had ever had recurrent back pain. The physician’s summary noted “back pain, not severe, [not considered disabling].” The pre-induction physical examination in January 1967 noted normal spine examination. A May 1968 service treatment record noted the Veteran reported pain in his right posterior thorax with taking deep breaths. He had not been doing any heavy lifting. A history of injury pre-Army was noted. On examination, there was no spasm or point tenderness. Range of back motion was full. Heat and bedrest were prescribed. The service separation examination in June 1969 noted normal spine examination. On the July 2016 notice of disagreement, the Veteran stated that he had had back issues since service and that he believed that they began due to lifting a jeep engine, during which he felt a sharp pain in his back. On the July 2017 VA Form 9, the Veteran noted that the extent of the in-service consequences to the injury were being placed on light duty and some heat treatment for a week. The Veteran also noted that he had lived with the pain since service and tried to “live with it and not run to the doctor every time a flare-up occurs because there is nothing they can do.” An October 2011 VA treatment record noted the Veteran reported a sore back for the past week. An October 2012 treatment record noted the Veteran complained of back pain for the past eight days after lifting a board. A VA examination in August 2015 diagnosed degenerative arthritis of the spine. The examiner noted that “back pain is the second most common symptom-related reason for clinician visits in the United States” and “up to 84 percent of adults have low back pain at some time in their lives.” The examiner determined it was less likely than not that the Veteran’s disability was incurred or caused by the claimed in-service injury; however, he stated that he could not provide an opinion without resorting to speculation, given the high incidence and prevalence of back pain. Given the inadequate rationale provided by the August 2015 examiner, the Board remanded the case for another examination/opinion. A VA examination was conducted in December 2019. The examiner diagnosed degenerative joint disease of the lumbosacral spine; mild scoliosis; and degenerative disc disease with intervertebral disc syndrome and radiculopathy. At the examination, the Veteran reported a history of injuring his back in service in 1968. “The Veteran states that he was doing some heavy lifting. He states that he developed pain in the lower back. He states that he was taken to the hospital. He was treated with rest and heat for about 1 week. He states that the pain resolved. There is no evidence of that encounter upon review of the pertinent medical records. He states that he did not have any symptoms until about 1970. The pain is in the low back. He was seen for a one-week history of low back pain after heavy lifting in 2011. He states that he has had intermittent visits for back pain. He was told that he had DJD of the spine in 2017. Current symptoms: Low back pain. Numbness in the posterior thighs and calves. The numbness is present continuously. X-Ray LS Spine: Diffuse Disc height loss. Degenerative end plate changes and facet arthroses. Most pronounced at L4-5 and Ls-S1. Straightening of the normal lumbar lordosis.” The examiner opined that: The Veteran’s back conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event, or illness. Rationale: 1) There is no history of an injury related to the back during Military Service based upon a review of the pertinent medical records. The Veteran was seen in 2011 with a history of LBP for 1 week and no history of chronic back pain prior to that time. No X-Rays were obtained. He was subsequently diagnosed with DJD and DDD of the LS Spine in 2015. The symptoms have worsened over the past few years and he has also developed radiculopathic symptoms. The current X-Rays reveal DJD and DDD. The current condition that is seen appears to have begun many years after separation from Military Service. A Separation Examination dated 1/16/69 failed to reveal any evidence, by history or examination, of a current or past back condition. 2A) The diagnosed conditions are less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event, or illness. There is no history of an injury related to the back during Military Service based upon a review of the pertinent medical records. The Veteran was seen in 2011 with a history of LBP for 1 week and no history of chronic back pain prior to that time. No X-Rays were obtained. He was subsequently diagnosed with DJD and DDD of the LS Spine in 2015. The symptoms have worsened over the past few years and he has also developed radiculopathic symptoms. The current X-Rays reveal DJD and DDD. The current condition that is seen appears to have begun many years after separation from Military Service. A Separation Examination dated 1/16/69 failed to reveal any evidence, by history or examination, of a current or past back condition. 2C) The diagnosed conditions are less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event, or illness. There is no history of an injury related to the back during Military Service based upon a review of the pertinent medical records. The Veteran was seen in 2011 with a history of LBP for 1 week and no history of chronic back pain prior to that time. No X-Rays were obtained. He was subsequently diagnosed with DJD and DDD of the LS Spine in 2015. The symptoms have worsened over the past few years and he has also developed Radiculopathic symptoms and mild scoliosis. The current X-Rays reveal DJD and DDD. The current condition that is seen appears to have begun many years after separation from Military Service. A Separation Examination dated 1/16/69 failed to reveal any evidence, by history or examination, of a current or past back condition. The examiner also noted: There is no evidence of a specific injury during the Veteran’s Military Medical Service. Back pain is a common condition occurring in most people at multiple times in their lives and is usually due to a musculoskeletal strain. Those strains generally heal. There is no evidence that they result in significant degenerative disease of the spine. The condition that he currently exhibits appears to be related to the LS Spine. It is the most common back condition seen and is due to the accumulation of many years of trauma. The Veteran’s condition was diagnosed 46 years after separation from Military Service and is consistent with age related changes. The competent and credible evidence fails to show that the current back disorders were diagnosed in service or that arthritis of the spine was diagnosed within one year of separation from the Veteran’s period of active service. As such, service connection is not warranted under 38 C.F.R. §§ 3.303, 3.307, 3.309. After careful consideration, the Board finds that service connection is not warranted. The competent and probative medical evidence does not show a causal nexus between the Veteran’s back condition and his period of service. The objective record shows that the Veteran was noted to have a history of back pain at service entrance, although the pre-induction examination noted normal spine. While the Veteran now reports that he injured his lower back lifting a jeep engine in service and was treated for that injury, the service treatment records do not confirm his report. Instead, they show that during service he complained of pain in the right posterior thorax between the scapula and spine; examination showed normal range of motion of the spine and no spasm or tenderness. He reported he had not been doing heavy lifting at that time. There were no other entries related to the back or “posterior thorax” in the service treatment records. The service separation examination noted normal spine. The competent and probative evidence is against the finding for a causal nexus. As noted, the service treatment records do not show a low back injury. There are no records for many years after separation from service regarding a low back condition. When considered with the negative nexus opinion provided by the December 2019 examiner, the preponderance of the evidence is against a finding of a causal relationship. The December 2019 examiner provided a credible rationale for the finding that the Veteran’s currently documented spine conditions were unrelated to his period of service. He noted that the Veteran was seen in 2011 with reported history of recent back pain, with no prior back history reported, and that his current back conditions were more consistent with the Veteran’s age and not to any possible inservice muscle strain. The Board has considered the Veteran’s statements, but they are not probative. Lay persons are competent to attest to factual matters to which they have first-hand knowledge (e.g., pain). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). To this extent, the Board finds that the Veteran is competent to report that he has back pain. He has not been shown to have the experience, training, or knowledge necessary to provide a competent etiology opinion as to his back conditions. The Board finds that such an etiology finding falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the competent and credible evidence of record is against a finding that a back condition was incurred as a result of service. As preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.