Citation Nr: 20031445 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 18-30 794 DATE: May 5, 2020 ORDER Service connection for a disability of the lumbar spine is denied. FINDING OF FACT The Veteran has a current disability of the lumbar spine; however, it is not shown to be etiologically related to service. CONCLUSION OF LAW The criteria for an award of service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1955 to January 1959. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. This case was previously before the Board in October 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service connection for a disability of the lumbar spine The Veteran maintains that he has a disability of the lumbar spine that is related to a motor vehicle accident in which he was involved while on active duty. See July 2016 notice of disagreement. He says that he did not report having back pain after the accident because he did not want to be thought of as a malingerer, he had applied to get into the NavCad program, and he did not want to be declared unfit for duty or given a medical discharge. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including arthritis—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence reflects that the Veteran has a current disability of the lumbar spine. See, e.g., August 2014 MRI lumbar spine without contrast (noting multi-level degenerative changes). Therefore, he has met the first requirement for an award of service connection. The Board also finds the Veteran’s lay testimony competent and credible with regard to the occurrence of an in-service event or injury. He has stated that he injured his back in a motor vehicle accident that took place between April 1956 and February 1957. See July 2016 notice of disagreement. Although there is no evidence in his service records to corroborate the occurrence of such an event, the Board finds no reason to doubt his statement that the accident took place as described. Therefore, he has also met the second requirement of service connection. With that said, the Veteran’s claim does not satisfy the third prong necessary for an award of service connection. That is to say, the weight of the evidence indicates that there is no link between his current low back disability and the in-service accident. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of a back disability during his military service. A January 1959 separation examination report reflects that his spine was found to be clinically normal at that time. In October 2014, while seeking a surgical evaluation for low back and leg pain, the Veteran told his surgeon that he began experiencing the discomfort in question approximately several months prior. See October 2014 orthopedic surgery consult/H&P note. Such a report, made contemporaneous with medical treatment, is both competent and credible and does not support a finding of continuous symptomatology dating back to the time of the Veteran’s military service. In addition, the Veteran underwent a VA examination in July 2019. He reported experiencing low back pain in the morning following an in-service motor vehicle accident around 1956-57. It was noted that he had undergone lumbar fusion in 2017 due to severe degenerative disc disease and radiculopathy, that he currently suffered from worsening back pain and a constant loss of sensation into the left leg, and that he used a walker or a cane to get around. After examining the Veteran, reviewing the claims file, and acknowledging the history of an in-service motor vehicle accident, the examiner opined that it was less than 50 percent likely that the Veteran’s current low back disability was incurred in or caused by an in-service injury, event, or illness. See July 2019 VA back examination. The examiner observed that chronicity of care was not established and that due to the length of time from discharge, non-service-related causes could not be ruled out, to include normal degeneration over time. Id. The Board has considered the Veteran’s theory that his current back disability was caused by the in-service accident. However, while he is competent to describe his symptoms, he is not shown to be competent to offer an opinion as to the connection between his current low back disability and an accident that occurred more than 60 years ago. That sort of determination is complex in nature and, as such, requires medical training and expertise, which he has not been shown to have. The VA examiner’s opinion from July 2019 was based on an accurate understanding of the Veteran’s history and was supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value for a medical opinion). Accordingly, it is entitled to substantial probative weight. There is no other medical opinion evidence to the contrary. The Board is grateful to the Veteran for his service. Nevertheless, based on the foregoing, the Board must find that the weight of the competent and credible evidence demonstrates that his current lumbar spine disability is not related to service. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.