Citation Nr: 20046679 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 16-40 312 DATE: July 13, 2020 ORDER Service connection for a low back condition is denied. FINDING OF FACT The Veteran’s low back condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 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 from May 1985 to February 1987. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. This matter was previously before the Board in November 2018 but remanded for further development. There has been substantial compliance with the remand directives. Service connection for a low back condition The Veteran seeks service connection for a low back condition. The Veteran contends her low back condition resulted from an in-service event where poles and tents from a portable kitchen setup fell on her when the truck she was riding in went over a sand bump. See November 2018 Board hearing transcript at 3, 9. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service treatment records show treatment for mechanical low back pain and muscle strain. A November 1985 service treatment record reflects complaints of low back pain for two weeks diagnosed as mechanical low back pain. In December 1985 the Veteran was seen for back and neck pain for three days assessed as muscle strain. A February 1986 report of medical examination reflects a normal clinical evaluation of the spine. A September 1986 note shows a complaint of low back pain with no known cause that was assessed as possible low back strain. An undated service treatment record notes low back pain for four days assessed as L-5 strain. A February 1987 report of medical history completed at discharge indicates the Veteran denied recurrent back pain. Reserve treatment records include a December 1988 report of medical examination which reflects a normal clinical evaluation of spine. The Veteran also denied recurrent back pain on a December 1988 report of medical history. These service records contain no line of duty determinations, to include for a low back condition. Post-service private treatment records show treatment for the back beginning in January 2007, and subsequent diagnoses of degenerative disc disease (DDD) with right-sided sciatica, in addition to arthritis. Of note is a January 2012 treatment record that showed the Veteran complained of back pain. The note indicates she was working in a post office lifting boxes and may have injured her back while doing that, but she did not not remember a clear injury or trauma. Additional complaints were noted in August 2012 and October 2012. One October 2012 treatment record indicates the Veteran was riding in the back of a truck when a portable kitchen fell on her low back in 1990. An August 2016 treatment note also reflects her report of low back pain that started over 15 years ago when she was on service after a portable kitchen fell on her back. The Veteran recalled being pinned between a kitchen and the rest of the food. Also, a January 2017 VA treatment record mentions an injury in the military that caused her back pain in 1990. At a VA examination in February 2013, an examiner provided an unfavorable opinion only on the current diagnosis of degenerative disc disease of the lumbar spine. The examiner noted the Veteran’s case file reflects a strain in 1985, increased pain, and current degenerative disc disease with some leg pain. The examiner also noted arthritis. The examiner opined that, because the claims file only shows a strain in the 1980s and now degenerative disc disease, it is less likely that her current degenerative disc disease of the lumbar spine is related to her strain in service but rather natural age progression. In June 2018, the Veteran’s friend of thirteen years indicated that the Veteran would decline outings due to her back problems. The Veteran’s sister also indicated that the Veteran has had chronic lower back and leg pain. The Veteran’s son also reported the Veteran is not able to lift heavy objects or able to walk long distances without having to stop. In June 2018, the Veteran testified that a portable kitchen poles and tents fell on her back. The Veteran indicated that her back problems began a couple of days after the incident and she went to sick call several times. She also indicated that the pain has continued since service; her leg pain began after discharge. See June 2018 Board hearing transcript 3-9. The Veteran underwent another VA examination in March 2019. The examiner noted a diagnosis of degenerative arthritis of the lumbosacral spine and opined that this condition is less likely than not incurred in or caused by her in-service back pain. In support of the opinion, the examiner noted her service treatment records reflect treatment in November 1985, December 1985, and September 1986. The examiner noted the Veteran denied recurrent back pain in February 1987 and December 1988 and her physical examination was within normal limits. The examiner noted that there was no objective evidence for continuity of care for a back condition for the Veteran while on active duty as the Veteran was not seen for follow-up care within 30 days of her treatment in 1985 or 1986 and separated with no complaints of back pain. The examiner also noted that lumbosacral strains generally resolve within six weeks without residuals as in this case. The examiner further noted that the Veteran’s medical treatment records are silent for complaints of back pain from 1987 until 2007 such that there is no objective evidence for continuity of care for a back condition from 1987 until 2007. Finally, the examiner explained that the degenerative arthritis of the spine is at least as likely as not incurred in or caused by wear and tear as a postal employee and normal age progression. After a review of the evidentiary record, the Board finds that the preponderance of the evidence weighs against the claim. The Veteran’s March 2019 VA examination reflects a diagnosis of degenerative arthritis of the lumbosacral spine, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the Board finds the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. As noted, the service treatment records do not reflect a diagnosis of arthritis. There is no competent evidence of a diagnosis of arthritis at discharge or within a year of service discharge. Rather, arthritis was not diagnosed until many years after discharge as shown by the medical records. The Veteran, her son, sister, and friend are competent to report onset and continuity of her back pain. The Board does not reject their lay statements solely because the post-service treatment records are silent for complaints and/or treatment of back problems until many years after service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Rather, the Board has considered their lay statements but finds they are outweighed by the competent VA medical opinion to the extent that they are offered to establish a causal link between arthritis and a service injury. There is no indication that the Veteran or her son, sister, and/or friend possess the medical knowledge to attribute her current arthritis to events or injuries in service despite them having noticed recurrent back pain over the years after service. With respect to this complex medical question, these lay assertions are outweighed by the competent medical evidence. That is, the Board assigns more probative weight to the opinion provided by the March 2019 VA medical examiner who considered the report of recurrent back symptomatology, but determined the current arthritis is not related to military service. The examiner’s clinical expertise and training make him competent to render medical opinions on the etiology of complex medical conditions, such as arthritis. The February 2013 VA medical opinion, which is unfavorable as it relates to a causal nexus between service and current degenerative disc disease, is also probative. The February 2013 and March 2019 VA opinions were supported by review of the Veteran’s entire claims file and establishes that these symptoms are not attributable to an in-service event, injury, or disease. Indeed, the March 2019 VA examiner found the Veteran’s back condition to be at least as likely as not incurred in or caused by wear and tear as a postal employee and normal age progression. Similarly, the February 2013 VA examiner found the Veteran’s degenerative disc disease is less likely related to her strain in service but rather natural age progression. Thus, the Board finds the probative weight of the lay statements of record is outweighed by the probative weight of the more comprehensive and well-supported VA opinions, especially the March 2019 VA opinion, which is based upon consideration of the Veteran’s pertinent medical history and her lay assertions and complaints. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable and service connection for a low back condition is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.Aoughsten, 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.