Citation Nr: 20046596 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 15-37 631 DATE: July 13, 2020 ORDER Entitlement for service connection for back condition is denied. FINDING OF FACT The preponderance of the evidence is against finding that Veteran’s back condition began during active service, manifested within one year of separation, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for back condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) in the Army National Guard from June until November 1996. He served on active duty in the United States Army from July 2000 until January 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a November 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Portland, Oregon. In August 2018, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. The Board’s 2018 remand determined the examiner’s opinion was based largely on a lack of treatment records, which, alone, is an insufficient basis to find against a nexus to military service. Further, the VA medical opinions failed to reflect consideration of the Veteran’s lay statements, or relevant service treatment records in May, November, and December 2001. Previous VA medical opinions obtained in October 2014 and August 2016 were deemed inadequate as the VA examiners did not address whether the Veteran’s back condition manifested in service, given the Veteran’s report of a motor vehicle accident occurring during his period of active duty in 2001. Subsequent to remand, the RO obtained an addendum opinion in May 2020. Here, the examiner reviewed the entire claims file, to include the Veteran’s statement of in-service events and his service treatment records, and provided a basis for his conclusions. The examiner made the ultimate determination required by the Board’s remand. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). With regard to the sufficiency of the VA medical opinion on the issue, the Board finds there was substantial compliance with the prior remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for back condition is denied. 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 military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (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 or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309. The Board concludes that, while the Veteran has a current diagnosis, and evidence shows that a 2001 motor vehicle accident may have occurred, the preponderance of the evidence weighs against finding that the Veteran’s condition began during service, manifested within one year of separation, or is otherwise related to an in-service injury, event, or disease. The Veteran was afforded two VA examinations in connection with his service connection claim for his back condition. In October 2014, the Veteran reported the onset of his pain to be 2002, subsequent to a motor vehicle accident in 2001, and prior to his discharge from active duty in 2003. In relying on in-service X-rays taken before discharge, the examiner declined to provide a nexus, noting the images were negative for fractures and the present severity of the condition to be moderate. See PA RFM, C&P Exam 10/28/2014. In August 2016, the VA examiner indicated evidence of a multi-level compression fracture of the Veteran’s thoracic spine, but also noted these fractures were not present on imaging taken in-service. See Dr. ICT notes, C&P exam 8/23/2016. Both examiners found the condition to be less likely than not related to the Veteran’s military service. In the May 2020 VA addendum opinion, the examiner also opines that it is less likely than not the Veteran’s back condition is related to his military service. In his rationale, the examiner notes that, although the Veteran’s separation exam in October 2002 contains a history of subjective complaints of back pain, and his service treatment records show low back pain on three occasions in 2001, a physical examination of the Veteran’s back was objectively unremarkable at that time. Noting the Veteran’s current subjective complaints, his normal back at separation, and an absence of continuous medical treatment since service, the examiner concludes the Veteran’s back condition occurred after discharge from active duty. The Board finds that the medical opinion is more persuasive and probative than the Veteran’s current lay statements. Specifically, it is supported by the record. VA treatment records show the Veteran did not complain of back pain, nor was he diagnosed with lumbar and thoracic strain, until 2014, nearly 11 years after his separation from service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000); Shaw v. Principe, 3 Vet. App. 365 (1992). The examiner found important the lack of treatment, but also the totally normal back examination at separation. Thus, he did not solely rely on the lack of treatment as the basis for his opinion. As such, the Board affords this opinion significant weight. While the Veteran is competent to report having experienced the motor vehicle accident, he is not competent to determine that this is the etiological cause of his back condition. Spinal injury is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence, especially with a diagnosis of the claimed disability occurring many years after service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). To the extent that the evidence demonstrates degenerative arthritis of the spine, which is subject to presumptive service connection, the Board notes that such arthritis was not manifested within one year of separation from service in 2003. Rather, the first indication of degenerative changes was on x-ray in 2014. Therefore, presumptive service connection is not applicable. In sum, the Board finds that the preponderance of the evidence is against this service connection claim, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.