Citation Nr: 20031677 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 13-27 252 DATE: May 5, 2020 ORDER Service connection for a back disability is denied. FINDING OF FACT The most probative evidence is against a finding that the Veteran’s current back disability had its onset during active duty service or is related to such service; or that arthritis was manifested within one year of his discharge from service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from May 1966 to March 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen a previously denied claim for service connection for a back disability. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in August 2016. A transcript is of record. The Board issued a decision in December 2016 that declined to reopen the claim. The Veteran appealed the Board’s December 2016 decision to the United States Court of Appeals for Veterans Claims (Court) and in a January 2018 Joint Motion for Remand, the parties requested that the Court vacate the December 2016 Board decision. The Court granted the Joint Motion in a January 2018 order. The Board issued a decision in April 2018 that reopened the claim and remanded it. 1. Service connection for a back disability Service connection may be established 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. 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). In cases where a veteran served continuously for 90 days or more during active service and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. The Veteran seeks service connection for a back disability. He reports that he accepted a role to play football for the military; that he injured himself during that time; and that he continues to have problems with his back to this day. The Veteran asserts that throughout his enlistment he actively participated in both football and basketball for the Marine Corps and that his post-military employment and subsequent activities were not the cause of his back-related issues. He testified that he was placed on an athletic hold to play football and basketball for the Marine Corps instead of being sent to Vietnam and that his job immediately following service was a supervisory job that was not as physically demanding as his military occupation. He denied having any workers’ compensation back-related injuries. Several statements have been submitted in support of the Veteran’s claim. In a January 2011 letter, the Veteran’s former spouse reported that she met the Veteran in 1968 while he was still in service; that even as a young man, he was very fit but always seemed plagued with back problems; and that over the years, his back pain became more frequent and occasionally kept him from work. In an August 2016 email, E.O.W. wrote that he met the Veteran in service; that they played sports together; that the Veteran had to go to sick bay several times for back problems due to his duties and athletics; and that the Veteran had to be in extreme pain if he went to sick bay. In a May 2018 letter, J.E.G. wrote that he had served with the Veteran from 1966 to 1969; that they were both ordered and expected to contribute to athletics while in the Marine Corps; that many participants had to recover from injuries using their own remedies and relying on experiences encountered in college or elsewhere; and that because of the Veteran’s hasty style on the basketball team, he may have been exposed at times to possible injuries. Service treatment records include a January 1966 service entrance examination, which showed a clinically normal spine and musculoskeletal system. The corresponding January 1966 report of medical history documents the Veteran’s report of wearing a back brace in school and having a back injury playing football consisting of a low back strain in 1962 and 1965. The Veteran was found to be qualified for entry into service. Service treatment records show he was seen in October 1969 for a left side contusion. There was tenderness over the iliac crest and hematoma of the left flank. On November 4, 1967, he complained of a side ache, which was felt to be a post flu symptom. He was seen again on November 14, 1967, complaining of stomach and side ache. There was mild tenderness to percussion in the right upper quadrant, but physical examination was otherwise within normal limits. No specific back complaints were otherwise noted in the service treatment records. The February 1970 separation report of medical examination again showed a clinically normal spine and musculoskeletal system. Post-service, a June 1975 private treatment record noted that, in the prior month, the Veteran developed pain in the sacral area, which had progressed upward to involve the spinous process of L4-5 with point tenderness. The physician found no adjoining muscle spasm or tenderness. The examiner diagnosed “chronic lumbosacral spine primarily limited to the interspinous ligaments.” The physician opined that it was probably directly related to his day to day work and physical activity. Examination of the lumbar spine showed very slight scoliosis, convex to the right. No bony abnormalities of the lumbar spine were noted. Private treatment records from December 2006 note the Veteran reporting a six-week history of progressive lumbar region pain with radiation into the left leg. He described a two-year history of chronic left hamstring region pain with chronic left hallux numbness. He described the acute onset of low back pain and worsening left lower extremity complaints related to an ATV accident on November 9, 2006. He described prior occasional moderate low back pain, but “nothing like this.” A March 2009 private treatment record indicates that the physician thought the Veteran’s back symptoms were related to past activities, including playing football in service, although what percentage was difficult to put a number on. This opinion is not afforded high probative value because it did not provide a rationale and did not consider the Veteran’s complete history related to his back, to include the November 2006 ATV accident. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). In an August 2016 letter, Dr. D.C.S. reports that he cared for the Veteran for back problems for several years and that, historically, the Veteran’s back pain started during his military service, specifically related to his participation in high level competitive sports activities. Dr. S. reported that the Veteran had significant spine disease and it was his opinion these activities very likely contributed to the early onset of his back problems and secondary physical limitations. This opinion is not afforded high probative value because Dr. S. does not indicate when he provided care to the Veteran, does not include a rationale for the opinion, and does not consider the Veteran’s complete history related to his back, to include the November 2006 ATV accident. Id. The Veteran underwent a VA examination in September 2019, during which he was diagnosed with degenerative arthritis of the spine. In pertinent part, he reported that he has had back pain since he was in service; that after service he worked for about nine and one-half years as a supervisor for the railroad with some physical activities, although his back was not too bad during this timeframe; that he moved to positions doing maintenance for several school districts after the railroad, which did involve physical labor such as lifting, carrying, bending, and twisting; and that he retired from the last school maintenance position. Following detailed physical examination and review of the Veteran’s entire medical treatment history/record, the examiner provided an opinion that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was based on the fact that the Veteran’s complaints of back pain in 1962 and 1965 were very minor and common complaints and that these pre-service injuries healed up and were uneventful without leaving any deficits, which was consistent with the Veteran being examined and let into the service. The examiner noted the in-service contusion in October 1969, which was associated with sports and very common. The examiner determined that this injury was expected to heal up and did since the Veteran left service without any problems and later went into jobs with heavy physical labor, which would be expected to cause him some daily soreness and stiffness due to this activity. The examiner determined that there is no evidence to indicate that the Veteran had a chronic low back condition coming out of the service. The examiner noted the post-service back complaint in 1975 and determined the most likely cause of the complaints was the Veteran’s job at the railroad, since he was walking, standing, lifting, and had physical activity. The examiner also noted that the 1975 complaints were not related to any pre-service injuries or injuries during service playing sports. The examiner acknowledged the letters sent from the Veteran’s former spouse and friends and noted that the reports are all consistent with a finding that the Veteran has had some complaints of back pain at different times that are consistent with physical labor. The examiner noted that over time, physical labor and age are two of the most consistent causes for degenerative arthritis of the spine. The examiner also cited the 2006 ATV injury and noted that such injury is also a large reason that people have degenerative arthritis of the spine. While the examiner acknowledged that just because an individual plays sports and participates in physical labor does not mean that they will develop degenerative arthritis, the examiner noted that in this case, the Veteran had over a 25 year history of physical labor after the service before he was worked up to have any known degenerative changes. Given that he was not seen between 1975 and 2002, it makes it less likely his degenerative arthritis of the spine is related to service and makes it most likely consistent with his physical labor after service. The examiner concluded that the low back disability is not at least as likely as not related to his in-service complaints of back pain and history of playing sports and that his current symptoms are consistent with his history of physical labor and the normal aging process. This opinion is afforded high probative value because it considers the longitudinal history specific to this Veteran and the lay and medical evidence of record, to include the Veteran’s lay statements and the statements submitted by his former spouse and friends in support of his claim. Id. An October 2019 private record documents that the Veteran reported sustaining back injuries while playing sports for the Marine Corps and that these injuries could predispose him to getting degenerative changes in his lumbar spine. This opinion, however, is not afforded high probative value since it is conclusory and speculative in nature. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term “could,” without other rationale or supporting data, is speculative). The preponderance of the evidence is against the claim for service connection for a back disability on a presumptive basis since there is no evidence of arthritis affecting the back within one year of the Veteran’s March 1970 discharge from active duty service. The preponderance of the evidence is also against the claim for service connection for a back disability on a direct basis since the most probative evidence establishes that it is more likely the Veteran’s current back disability is related to his post-service history of physical labor and the aging process than the in-service complaints involving the back while the Veteran was playing sports for the Marine Corps. While the Veteran believes that his current back disorder is related to service, as a lay person, he has not shown that he has specialized training to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a back disorder are matters not capable of lay observation and require medical expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s own opinion regarding the etiology of his current back disorder is not competent medical evidence. The Board finds the June 1975 post-service treatment record, in which the Veteran reported that his back pain began the month before and made no reference to in-service back problems, and the December 2006 post-service treatment record, in which the Veteran reported prior occasional moderate low back pain, but “nothing like” the back pain following an ATV accident, to be more probative than his contemporaneous report of experiencing back pain since service. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board also finds the opinion of the VA examiner to be significantly more probative than the lay assertions provided by the Veteran. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.