Citation Nr: 20034028 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 14-42 352 DATE: May 15, 2020 ORDER Entitlement to service connection for lumbar spine, degenerative disc disease L5-S1 and minimal spondylosis L2 - L5 (low back condition) is denied. FINDING OF FACT The Veteran’s low back condition is not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty service from August 1964 to May 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Board notes that initially a service connection claim for sleep apnea was on appeal. In the October 2019 rating decision, the RO granted service connection for this claim, and the Veteran did not appeal this decision. Thus, the Board will not address this claim. In the April 2018 Board decision, the Veteran’s claim for service connection for a low back condition was remanded for a VA examination. The Veteran was afforded an adequate VA examination in September 2019 that included a medical opinion with a sufficient rationale. Thus, there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for a low back condition is denied. The Veteran contends his low back condition is related to service. In particular, he stated he was slammed up against a locker, fell off a huge aircraft and hit the ground, and tripped over a fire hose and fell on his right side during service. As a result, he was treated for his back numerous times in-service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2018); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the June 1967 service treatment record, it noted the Veteran had a sharp pain in his lower back. The Veteran was afforded two VA examinations. At the June 2011 VA examination, the VA examiner opined that the Veteran’s low back condition was not caused by or related to military service. The VA examiner reasoned that the Veteran’s low back condition was most likely than not related to “developmentally increased lumbosacral angle Ferguson” and excessive Body Mass Index of 44. The VA examiner referenced the Veteran’s in-service low back muscular spasm and concluded it has been resolved since there is no record of further follow-ups, complaints, or treatment. At the September 2019 VA examination, the Veteran reported four events in service. He was “body slammed” into a set of lockers in 1964, he fell down some stairs in 1964, fell over a fire hose in 1966, and fell into a fence in 1967. The Veteran reported pain and frequent spasm since that time. The examiner considered the Veteran’s reported in service incidents and opined that the Veteran’s low back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that the Veteran’s in-service low back spasm was acute and resolved without further complaint or evaluation, and his discharge examination is silent for a low back condition. Further, his current degenerative disc disease (DDD) and spondylosis is unrelated to his in-service low back muscle spasm since it developed 40 years later. In the February 2013 private back Disability Benefits Questionnaire (DBQ), the Veteran reported a history of lumbar pain since bending over since 1967. At his Board hearing, the Veteran testified that in 1968, a doctor prescribed him muscle relaxers, and told him that his symptoms were related to his injuries in service. Even assuming that the Veteran is a reliable historian and accurately asserts that such an opinion was provided, because it is not of record, the Board cannot assess the probative value of such a medical opinion. Additionally, a statement made in 1968 that the Veteran’s back symptoms present in 1968 were due to service is not probative evidence in support of a finding that the Veteran’s current DDD is related to the same incident. The Veteran’s private medical records show that arthritis was not present until August 2010. Private medical records from Dr. T. S. in March 2009 show that the Veteran had low back pain and intermittent muscle spasms. A record from Dr. T. S. in June 2009 specifically notes that a review of the musculoskeletal system was negative for back pain, but that he had pain in his shoulder. Records from Dr. T. S. in July 2009 show that the Veteran had low back pain. August 2009 and January 2010 records from Dr. T. S. specifically note that a review of the musculoskeletal system was negative for back and localized joint pain. Private medical records from Dr. K. J. beginning in May 2010 first note degenerative joint disease of the lumbar spine in August 2010. VA treatment records show complaints of low back pain and arthritis in October 2012 and consistently report low back pain. The Board considered the Veteran’s statements regarding his in-service incidents and acknowledges that lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the specific issue in this case, the etiology of the Veteran’s DDD and spondylosis, falls outside the realm of common knowledge of the Veteran in this case. See Jandreau v. Nicholson, 492 F.3d 1376, 1377 n.4 (Fed. Cir. 2007). The record does not show that he has the experience, skills, or medical training needed to determine the origin of an internal process such as DDD and spondylosis. The Veteran testified that he has had back problems since he was in the military. The Veteran’s spouse testified that the Veteran could not perform yard work. She stated that in 1974, he was unable to help her in their garden because of back pain, and that he told her he had a bad back since he was in the military. She stated that they met in 1970, and the he stated that he had a bad back since he was in service. The Veteran and his spouse’s assertion that the back symptoms the Veteran has experienced over time are from his service injuries is not competent. The record does not show that they are competent to find that the back pain he experiences currently is from the same back problem that he had in service, as opposed to from his current DDD with spondylosis, or due to any other intervening causes that may have occurred over the many years since service. To make this determination, a person would need to be able to make medical inquiry into biological processes, anatomical relationships, and physiological functioning. Neither the Veteran nor his wife have the experience or training needed to make such a determination. Their assertions are not competent evidence. Upon review of the evidence, the Board finds the September 2019 VA examiner’s opinion to be the most probative evidence because it was based on review of the Veteran’s lay statements and his complete medical record. Less probative weight is given to the February 2013 private back DBQ because it did not provide an etiology of the Veteran’s low back condition. Given that the preponderance of the evidence is unfavorable to the claim, VA’s benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.1. Accordingly, the Board finds the preponderance of the evidence is against the claim and service connection is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.