Citation Nr: 20037519 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 16-11 198A DATE: June 2, 2020 ORDER Service connection for residuals of a back/tailbone injury, to include a hip injury, is denied. FINDINGS OF FACT 1. A current diagnosis involving the hips, or functional impairment of earning capacity as a result of hip symptomatology, is not shown by the evidence of record. 2. The most probative evidence is against a finding that the Veteran’s current back disabilities had their onset during active duty service or are related to such service; that they resulted from the documented injury incurred while he was performing active duty for training; or that arthritis was manifested within one year of the Veteran’s discharge from active duty service. CONCLUSION OF LAW The criteria for service connection for residuals of a back/tailbone injury, to include a hip injury, have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty in the Air Force from July 1964 to May 1967. He later served in the Army National Guard for the State of Mississippi from August 1976 to June 1983 and from February 1984 to November 1997. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A transcript of the Veteran’s January 2019 testimony before the undersigned Veterans Law Judge is of record. In April 2019, the Board reopened a claim for service connection for residuals of a back/tailbone injury. The claim for service connection for residuals of a back/tailbone injury, to include a hip injury, was remanded for additional development. Since the Agency of Original Jurisdiction (AOJ) last considered the appeal, additional evidence has been submitted by the Veteran in the form of a statement in support of his claim. As there has been no written request that the AOJ initially review the evidence, initial review of the evidence by the Board is appropriate. See 38 U.S.C. § 7105 (e) (2012). 1. Service connection for residuals of a back/tailbone injury, to include a hip injury Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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. Active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active duty training includes full-time duty performed for training purposes by members of the National Guard. 38 C.F.R. § 3.6(c)(3). Presumptive periods do not apply to active or inactive duty training. See Biggins, 1 Vet. App. at 477-78. The Veteran seeks service connection for residuals of an in-service injury to his back/tailbone/hip. He has submitted a statement in which he reports that he was in an M-60 tank while at training at Camp Shelby when the tank crossed a series of terraces at speed which caused him to lose his grip on the rim of the hatch and he was thrown against the rim, fracturing his tailbone. He further reported that he was treated at the clinic where x-rays were taken but that his treatment records were thrown away by his company commander as retaliation against the Veteran and a statement that only related to a bruised hip was placed in his records. The Veteran indicates he currently has tailbone and right hip pain. A January 2019 statement from W.F.M., reports that this individual reportedly witnessed the tank injury that resulted in a broken tailbone. Service treatment records from the Veteran’s period of active duty service (July 1964 to May 1967) do not document any complaints or treatment related to problems involving the back, tailbone, or hips, and the Veteran denied history of broken bones; arthritis or rheumatism; bone, joint or other deformity; and recurrent back pain at the time of a May 1967 discharge examination. They do include a July 12, 1984, statement of examination and medical status that showed the Veteran hit a bump in a tank resulting in a bruised hip, which was during a period of active duty for training. Post-service private medical records indicate that the Veteran sought treatment in 1987 for severe lumbar region pain and severe pain radiating down his left leg to the foot, and that he was diagnosed with deteriorating disc in the lumbar region of the spine during treatment between 1987 and 1999. The Board remanded the claim in April 2019 in order to schedule a VA examination to determine whether it is at least as likely as not that the Veteran has a residual disorder involving the back/tailbone and/or hips as a result of the injury sustained on July 12, 1984, and to determine whether imaging of the Veteran’s tailbone supports the assertion that it was broken during active duty for training. VA examinations of the hip and back were conducted in October 2019 by the same examiner. The Veteran reported sacral/coccyx pain and was diagnosed with lumbar spine degenerative disc disease and degenerative joint disease. An x-ray of the sacrum and coccyx taken on the day of the examination contained an impression of no acute bony findings in sacrum or coccyx; and lumbar degenerative disc and facet disease. The examiner determined there was no objective evidence to support a current diagnosis involving the hips. The preponderance of the evidence is against the claim for service connection for a residual disability involving the hips. While the Board is cognizant that pain alone, can serve as functional impairment of earning capacity and therefore qualify as a disability, see Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), the October 2019 VA examiner clearly noted that there was no objective evidence of tenderness or pain involving either hip; no evidence of pain with weight bearing or with non-weight bearing of either hip; and that the Veteran was able to perform repetitive use testing with at least three repetitions and without loss of function or range of motion of both hips. Therefore, while the Board accepts the Veteran’s report that he has right hip pain as both competent and credible, there is no functional impairment involving either hip as a result of any hip symptomatology to qualify as a disability. Without evidence of a current disability affecting either hip or evidence of symptoms that result in functional impairment of earning capacity, the Veteran’s claim that he has a residual hip disability from the documented in-service hip injury is not supported by the evidence of record and service connection is not warranted. Id.; see also Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Regarding the diagnosed lumbar spine disorders, the October 2019 VA examiner provided an opinion that the current lumbar degenerative disc disease and degenerative joint disease are less likely than not a residual of the injury sustained on July 12, 1984. The rationale was based on the length of time from the in-service injury and the absence of objective evidence to establish a nexus from the injury many decades ago to his current conditions. The examiner also acknowledged the statement from W.F.M. that the Veteran had a tailbone fracture but determined that there was no objective evidence that it occurred, and that imaging does not support that the tailbone was broken in service. This opinion, which stands uncontroverted in the record, is afforded high probative value because it was based on imaging of the Veteran’s sacrum and coccyx, review of the in-service and post-service medical evidence of record, and the lay statements of record. 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). The preponderance of the evidence is also against the claim for service connection for a residual disability involving the back or tailbone. While there is no question that the Veteran injured himself during active duty for training on July 12, 1984, the x-ray evidence does not corroborate the assertion made by him and W.F.M. that the Veteran fractured his tailbone as a result of the injury, and neither W.F.M. or the Veteran are competent to report that a tailbone fracture occurred. 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 addition, the October 2019 VA examiner provided a probative opinion that the current lumbar spine disorders are less likely than not a residual of the injury sustained on July 12, 1984. While the Veteran believes that his current back disorders are related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. Id. In this regard, the diagnosis and etiology of a back disorder are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of any back disorder, to include the assertion that his post-service problems are related to in-service injury he sustained during active duty for training on July 12, 1984, is not competent medical evidence. 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 disorders is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. Service connection is not warranted on a presumptive basis pursuant to 38 C.F.R. §§ 3.307 and 3.309 for the diagnosed lumbar degenerative disc disease and degenerative joint disease since there is no evidence that the Veteran had arthritis in his lumbar spine within one year following his May 1967 discharge from active duty service. (Continued on the next page)   In reaching the above conclusions, 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) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). LESLEY A. REIN 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.