Citation Nr: 20042360 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 10-29 973 DATE: June 23, 2020 ORDER Service connection for a lumbar spine disorder is denied. FINDINGS OF FACT 1. The Veteran had active service from August 1963 to July 1966. 2. A lumbar spine disorder, to include degenerative disc disorder (DDD) of the lumbar spine, spondylosis, stenosis, and a lumbar strain, was not shown in service, was not shown to a compensable degree within one year of separation from service, was not continuous since service, and was not caused or permanently worsened by a service-connected disability. CONCLUSION OF LAW A lumbar spine disorder was not incurred in service, was not proximately due to or aggravated by a service-connected disability, and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, this case was previously before the Board on multiple occasions, most recently in July 2019, at which time the case was remanded for additional development. The case has been returned to the Board for further appellate action. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. As an initial matter, the Veteran has argued that his lumbar spine disorder has been caused or aggravated by his service-connected left knee disorder; as such, secondary service connection will be considered. Furthermore, spondylosis is a chronic disorder under 38 C.F.R. § 3.309(a); accordingly, presumptive service connection on the basis of continuity of symptomatology will be also addressed, along with direct service connection. Turning first to direct service connection, the Veteran has a current diagnosis of a lumbar spine disorder. Specifically, multiple VA examinations between April 2008 and December 2019 diagnosed spondylosis, DDD, stenosis, and a lumbosacral strain. Accordingly, a current diagnosis has been shown and the first element of service connection has been met. As to an in-service incurrence, a review of the service treatment records (STRs) STRs reveal that the Veteran’s spine was found to be clinically normal in his July 1966 separation examination. The STRs are otherwise negative for complaints, treatment, or diagnoses of a lumbar spine disorder. Therefore, a chronic lumbar spine disorder was not shown in the STRs. Nonetheless, the Veteran reported in multiple lay statements, to include a December 2008 statement, that he experienced back pain in a parachute jump, but that he never went to sick call for treatment due to fear of his fellow servicemembers and being too busy performing his in-service duties to receive treatment. He stated that his many in-service jumps caused his back injury. The records establish that the Veteran had 20 parachute jumps while in service, to include 13 jumps at Fort Campbell between 1963 and 1965. Furthermore, veterans are competent to report symptoms experienced in service. As such, the second element of service connection – an in-service incurrence – has been met. Turning to nexus, the Veteran asserted in December 2008 and July 2010 statements that his current lumbar spine disorder was related to in-service parachute jumps. He is competent to report symptomatology, but is not competent to opine as to the etiology of a current disorder. As such, while his lay statements weigh in favor of the claim, they are assigned lesser probative value. In September and December 2008 private medical opinions, a private clinician offered that the Veteran’s lumbar spine disorder was more likely than not caused by in-service parachute jumping. The clinician explained that the Veteran reported a history of in-service injuries, to include those incurred while undergoing parachute training. The clinician noted that imaging revealed degeneration to the Veteran’s lumbar discs that was consistent with damage caused by extreme axial loading, such as that which would be caused by parachuting. The clinician further observed that the Veteran had received ongoing treatment for constant lower back pain. However, while the STRs documented that numerous in-service parachute jumps, it failed to document a lumbar spine disorder. Rather, STRs and subsequent post-separation records revealed that the Veteran was diagnosed with left knee and left shoulder injuries as a result of a parachute jump. The medical opinions are thus not supported by the evidence of record. Accordingly, while the private medical opinions weigh in favor of the claim, they are assigned lesser probative value. In a May 2010 VA examination, the examiner diagnosed lumbar DDD and lumbar stenosis. The examiner noted that the Veteran recalled an isolated in-service injury during a parachute landfall, but that the STRs failed to reflect the report, opining that it was less likely than not that the Veteran’s lumbar spine disorder was incurred in service. The examiner remarked that the Veteran’s lumbar DDD could have been a progression of an isolated lumbar spine injury and that he could have sustained an axial load injury of his back during a hard parachute fall; however, the examiner’s observations were speculative; accordingly, the May 2010 VA examination is assigned lesser probative value. In multiple subsequent buddy statements between December 2011 and May 2012, family members, friends and coworkers reported that the Veteran had told them that he was a paratrooper in service and injured his back while in service during a jump. However, the buddy statements merely document conversations with the Veteran regarding the status of his back. Furthermore, as noted above, lay witnesses are not competent to opine as to the etiology of any current disorder, to include a lumbar spine disorder. As such, the submitted buddy statements are also assigned lesser probative value. Since May 2012, the Veteran has been examined in March 2016, July 2018, and December 2019. He consistently reported that he was a parachutist in service and that his lumbar spine disorder stemmed from his many in-service jumps. The examiners diagnosed a lumbar spine disorder, to include degenerative changes, spondylosis, and a lumbosacral strain. However, the examiners all found that it was less likely than not that his lumbar spine disorder was incurred in or caused by service. The March 2016 examiner noted that while the Veteran required low back surgery, the procedure was performed after separation. The July 2018 examiner detailed how parachuting was well known to cause spinal cord injuries, most commonly vertebral body fractures, to typically include wedge compression-type fractures, and found that the Veteran’s treatment records did not suggest post-traumatic arthritis, healed vertebral compression fractures, or a chronic lumbar disorder. The July 2018 examiner further noted that medical literature did not find military service without a known trauma to constitute a factor in the development of lumbar osteoarthritis, observed that the Veteran did not seek treatment for a lumbar spine disorder until 2007, and offered that his lumbar spine disorder was due to the natural aging process and from normal wear and tear. Most recently, the December 2019 examiner remarked that pinpointing the exact cause of the Veteran’s lumbar spine disorder was difficult at best and opined that given the then-current medical research, it was with no degree of medical certainty that the Veteran’s parachute jumps were the sole cause of his lumbar spine disorder. The Board finds the March 2016, July 2018, and December 2019 examinations to be adequate because the examiners thoroughly reviewed the claims file and discussed the evidence of record- to include whether the evidence of record established a nexus between the Veteran’s current disorder and active service, considered his assertions, and provided a thorough supporting rationale for the conclusion reached. As such, the examinations are assigned greater probative value and weigh against the claim. In sum, after a careful review of the record, the preponderance of the evidence fails to establish that the Veteran’s current lumbar spine disorder is etiologically related to service. As such, the medical evidence does not support service connection on a direct basis for a lumbar spine disorder. Turning to the one-year presumption, the Veteran’s lumbar spine disorder did not manifest to a compensable degree within a year of separation from service. A review of the record reveals that the Veteran was out in September 1970 and April 1971 due to pulled ligaments and muscles in his low back. Subsequently, chronic back pain was noted in a June 2006 treatment note. Even assuming that the Veteran developed symptoms of his current lumbar spine disorder in 1970, this is outside the one-year legal presumption for certain chronic disorders. Therefore, the medical evidence does not support service connection on a one-year presumptive basis. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). As noted above, the evidence shows that the symptoms of the Veteran’s low back disorder began as early as September 1970, 4 years after his separation from service. Therefore, the current low back disorder was not shown until September 1970, with documentation beginning at the same time. In light of the above, the medical evidence does not support the claim for service connection based on continuity of symptomatology. Further, the evidence does not support his claim based on secondary service connection. While there is evidence of a current lumbar spine disability and evidence of a service-connected disability (DJD of the left knee and left knee instability), the medical evidence does not establish a nexus between the two. Specifically, in March 2016 and December 2019 VA examinations, the examiners opined that the Veteran’s lumbar spine disorder was not caused or aggravated by his service-connected left knee disorder. The examiners observed that back injuries that were a product of lower extremity injuries typically resulted in noticeable impairments in posture, stance, and gait, but that the Veteran did not exhibit these changes and that his gait and stance were normal. While the December 2019 examiner offered that his back disorder could have been aggravated by his service-connected left knee disorder, neither the March 2016 nor the December 2019 examiner found sufficient evidence to establish that such aggravation had occurred. Accordingly, the March 2016 and December 2019 VA examinations do not support a claim for secondary service connection. Furthermore, additional post-service records fail to establish a relationship between the Veteran’s lumbar spine disorder and his service-connected disabilities. Therefore, the medical evidence does not support the claim based on secondary service connection. The Board has considered the medical articles submitted by the Veteran concerning the relationship between parachute jumps and lumbar spine disorders; however, none of the articles address the Veteran’s specific case or establish that his claimed lumbar spine disorder was related either to in-service parachute jumps or otherwise to service, particularly in light of the medical opinions addressing his specific situation. The Board has also considered the lay statements submitted by the Veteran, his family and friends regarding the etiology of his lumbar spine disorder. Lay witnesses are competent to report symptoms and describe their observations because this requires only personal knowledge as it comes to them through their senses. However, they are not competent to offer opinions as to the etiology of any current disorder due to the medical complexity of the matters involved. Such competent medical evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the medical examinations and treatment notes) directly address the criteria under which his lumbar spine disorder is evaluated. As the clinicians have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board: A. Spigelman, 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.