Citation Nr: 20053553 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 15-25 996 DATE: August 12, 2020 ORDER Entitlement to service connection for a low back disorder, for treatment purposes only, under Title 38, United States Code, Chapter 17 is denied. Entitlement to service connection for an upper back disorder, for treatment purposes only, under Title 38 United States Code, Chapter 17 is denied. FINDINGS OF FACT 1. A low back disorder was not manifest in service or within one year of separation, and was not incurred or related to the appellant’s active service. 2. An upper back disorder was not manifested in service and is not attributable to service; an upper back disorder is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for treatment purposes only under Chapter 17, Title 38, U.S.C., for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 1702(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 17.109 (2019). 2. The criteria for service connection for treatment purposes only under Chapter 17, Title 38, U.S.C., for an upper back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 1702(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 17.109 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant served on active duty in the U.S Army from September 1982 to December 1987. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In February 2014, VA issued an administrative decision that the Appellant is entitled to healthcare by Chapter 17 of Title 30 U.S.C. for any disabilities determined to be service connected, though his service is considered dishonorable for VA purposes and is a bar to gratuitous benefits. On the question as to whether the Veteran’s low back and upper back conditions are entitled to service connection, and thus healthcare for treatment purposes, this matter was remanded by the Board in July 2018 for additional development and due process considerations. The development was completed and a supplemental statement of the case was issued in May 2020. The case was returned to the Board for appellate consideration. The Board finds that the opinions obtained are adequate and that there has been substantial compliance with the 2018 remand directives. Dyment v. West, 13 Vet.App. 141, 146-47 (1999). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the appellant nor his representative has 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). Service Connection for Treatment Purposes Health care and related benefits authorized by Chapter 17 of Title 38 United States Code (U.S.C.) shall be provided to certain former servicepersons with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty. 38 C.F.R. § 3.360(a). With certain exceptions, such benefits shall be furnished for any disability incurred or aggravated during a period of service terminated by a discharge under other than honorable conditions. Such benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. 38 C.F.R. § 3.360(b). In this case, the Appellant has not been found to have any of the bars listed in 38 C.F.R. § 3.12(c) due to his other than honorable discharge, but he accepted an undesirable discharge to escape trial by general court-martial pursuant to 38 C.F.R. § 3.12(d)(1). This finding does allow for the Appellant to still be eligible for medical treatment for a current disability that is found to have been incurred or aggravated in his active duty service. Thus, the question here is whether or not the Veteran’s upper and lower back disabilities were incurred or aggravated by his active service. In making determinations of health-care eligibility, the same criteria will be used as is now applicable to determinations of service incurrence and in line of duty when there is no character of discharge bar. 38 C.F.R. § 3.360(c). 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; 38 C.F.R. § 3.303(a) (2019). 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—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a low back disorder, for treatment purposes only, under Title 38 United States Code, Chapter 17. The Veteran has been diagnosed with lumbar strain with multilevel degenerative disc disease; thus, he has established current disability for his lower back. Additionally, the Board finds that, although the Appellant’s September 1982 enlistment examination shows he reported experiencing strained muscles in his back prior to service, and the attending physician indicated strained back muscles occurred in August 1982, such information is merely historical, and not reflective of a then-current disability, and therefore it does amount to a notation that would prohibit the application of the presumption of soundness. Further, there is no clear and unmistakable evidence establishing a pre-existing back condition. 38 C.F.R. §§3.304, 3.306. As such, the Board finds that the presumption of soundness applies here and notes that the Appellant’s service treatment records contain evidence of back pain during service; the Appellant was treated in April 1984 and September 1987 for low back pain following lifting heavy weight. Accordingly, there is an in service incurrence. The Board notes that it does not necessarily follow, however, that the unrebutted presumption of soundness will lead to service connection. The Appellant must still demonstrate a current disability and a nexus between his current disability and an injury or disease in service. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (explaining that the application of the presumption of sound condition does not “relieve the veteran of the burden of showing that the veteran suffered from a disease or injury while in service”); Dye v. Mansfield, 504 F.3d 1289, 1293 (Fed. Cir. 2007) (“The presumption of sound condition addresses the situation where a question arises whether a veteran's medical problems that arose during service existed before he joined the armed forces and, therefore, were not incurred in [the] line of duty.”). Accordingly, the Board now turns to the question of whether the Appellant’s currently diagnosed lumbar strain with multilevel degenerative disc disease is related to service. Turning to the question of nexus, a July 2019 VA examination report found that the Appellant’s lumbar strain with multilevel degenerative disc disease is less likely than not due to or caused by the Appellant’s claimed in-service event or injury. In particular, the July 2019 VA examiner noted that the Appellant’s in-service treatment was for acute injuries, three years apart, and that there is no evidence of chronicity of care during or since service; the VA examiner noted that, other than the Appellant’s 2013 claim and a 2014 MRI, there is no evidence of a history of low back complaints. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). As noted by the Federal Circuit, the Department must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to. Waters v. Shinseki, 601 F.3d 1274 (2010). To the extent that the Appellant asserts that his current low back disorder is related to his active service, the Board finds that the Appellant is not competent to establish a nexus between his current back problem and any incident in service. Such a finding is a complicated medical issue and requires medical knowledge and training which the Veteran does not have. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the probative value of the Appellant’s lay assertions are outweighed by the medical evidence of record and the July 2019 VA examination report. While the absence of treatment cannot be the sole basis of a finding that there is no relationship between a condition and service, the absence of treatment can be a factor in weighing whether such a relationship exists. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); see Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000) (noting that “evidence of a prolonged period without medical complaint” may be considered in determining whether a claimant’s condition is related to service). Here, the July 2019 VA examiner explained reasons for the conclusions based on an accurate characterization of the evidence of record, which does not demonstrate that the Appellant’s lumbar strain with multilevel degenerative disc disease is related to service. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion). Accordingly, the Board finds that the most probative evidence is against the claim of entitlement to service connection for lumbar strain with multilevel degenerative disc disease. See Madden v. Gober, 125 F.3d 1477, 1481 (1997). As such, health care benefits cannot be awarded for cervical strain with degenerative arthritis for treatment purposes under Title 38 U.S.C., Chapter 17. See 38 C.F.R. §§ 3.12(d), 3.360. 2. Entitlement to service connection for an upper back disorder, for treatment purposes only, under Title 38, United States Code, Chapter 17. Regarding the Appellant’s claim for service connection of an upper back disorder for treatment purposes, the weight of the evidence also reflects that the Appellant’s cervical strain with degenerative arthritis is not related to his active duty. While the Veteran has a diagnosis of cervical strain with degenerative arthritis, none of the Appellant’s service treatment records reflect complaints, treatment, or diagnoses of a neck or upper back disorder. To this point, nothing in the Appellant’s service or post-service treatment records indicate a relationship between his service and the post-service diagnosis of cervical strain with degenerative arthritis. To the extent that the Veteran is asserting such a connection through the filing of his claim, as with is lower back condition, the Board finds that he is not competent to establish a nexus. The etiology of an orthopedic condition is not something that can be determined based on mere observation, rather it requires medical knowledge and training that the Veteran does not have. Accordingly, there is no evidence of an inservice incurrence of an upper back or neck condition, nor is there competent evidence of a nexus between his current disability and his active service. To the extent that the Appellant claims that he is entitled to service connection for cervical strain with degenerative arthritis, as secondary to lumbar strain with multilevel degenerative disc disease, this theory of entitlement is without merit. As previously discussed, the Appellant’s lumbar strain with multilevel degenerative disc disease is not etiologically related to the Appellant’s service; as such, the Appellant’s cervical strain with degenerative arthritis cannot be causally related to service as due to lumbar strain with multilevel degenerative disc disease. See 38 C.F.R. § 3.310(a); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). That is to say, the elimination of one relationship to service, as the supposed precipitant, necessarily also eliminates all associated residual conditions. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). As the Appellant is not service connected for treatment purposes for lumbar strain with multilevel degenerative disc disease, service connection of cervical strain with degenerative arthritis, as secondary to lumbar strain with multilevel degenerative disc disease must be denied. Accordingly, the Board finds that the most probative evidence is against the claim of entitlement to service connection for cervical strain with degenerative arthritis. Because the criteria for service connection are not met, health care benefits cannot be awarded for cervical strain with degenerative arthritis for treatment purposes under Title 38 U.S.C., Chapter 17. See 38 C.F.R. §§ 3.12(d), 3.360. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.