Citation Nr: 20054512 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 14-26 084 DATE: August 18, 2020 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current lumbar spine disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for lumbar spine disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1973 to October 1976 in the Army with additional service in the Army National Guard, to include a verified period of active duty for training (ACDUTRA) from June 17, 1978, to July 1, 1978. This matter comes before the Board of Veterans’ Appeals (Board) from the May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a hearing before the undersigned at the RO. A transcript of that hearing has been associated with the claims file. In October 2019, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Analysis The Veteran seeks entitlement to service connection for a lumbar spine disorder, which he contends was caused by a June 1978, motor vehicle accident (MVA). At the time of the accident the Veteran was on active duty for training status (ACDUTRA), but away on personal business away from Camp Beauregard. He contends that he did not hurt his back after service, because although his job required him to move heavy equipment, he used hand trucks, forklifts, or pallet jacks. The Veteran initially sought treatment for his June 1978 back injury from his family physician because his car was damaged, and he was unable to return for sick call. The Veteran reported that he was treated for pain and for a laceration. He also reported that he thinks he was diagnosed with a lumbar strain. The Veteran began obtaining treatment for his lower back condition approximately 27 years after he separated from service. In April 2005, the Veteran had an x-ray that revealed narrowing of the disc spaces at L4-5 and L5-S1. In January 2014, the Veteran underwent a C&P examination for his lower back condition. The examiner noted that the Veteran had a diagnosis of intervertebral disc syndrome, which was diagnosed in 2005. The examiner opined that the Veteran’s chronic back disability is less likely than not, [less than 50 percent probability,] related to the residuals of the auto accident in June 1978, during the period of active duty for training service. The examiner provided the following rationale: The Veteran worked for 30 years for Coburn plumbing supplies that sells to contractors and municipalities. These supplies are heavy and he had to help with the loading and stocking of these items….The fact this Veteran was able to work at this job with heavy lifting for 29 or 30 years after the MVA.…while on active duty does not support the contention that the MVA was the cause of the chronic back problem. There is no documentation during the first 22 years of that period of the condition of his back, but the veteran notes that he was employed at that job involving heavy lifting during that time….Also one of the spine x-rays of the April 2005 prior to any disc surgery revealed in addition to disc narrowing at L4-5 and L5-S1 grade 1 spondylolisthesis due to bilateral spondylolysis (which is congenital) at level of L5. This is 27 years after the accident and about 27-28 years after working this job with heavy lifting. In August 2017, the Veteran testified at a Board hearing that he first hurt his back at summer camp at Camp Beauregard in Pineville, Louisiana. He was called home for emergency which they allowed him to attend and to be back the next morning, but he had an auto accident. He did not initially receive any treatment, but after a couple days went to see his family doctor, and was prescribed pain medicine, and muscle relaxants. In June 2019, the Veteran underwent a VA examination for his lumbar spine disorder. The examiner opined that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that, there is “no objective evidence contained within the C-file (STR’s, Separation Exam, etc.) which demonstrates the Veteran’s lumbar spine disorder was caused by the 1978 MVA in service.” In April 2020, the June 2019 examiner provided an addendum opinion stating that, The records do not support a development of a back condition within a year of active duty. While MVA occurred 6/1978 during the verified period of ACDUTRA between 6/17/78 and 7/1/78 (as reflected in court documents), there are no subsequent treatment records demonstrating subsequent back pain during the next almost 30 years. As outlined in the 2/25/15 Back DBQ and Medical Opinion it is clear that the Veteran had worked for nearly 30 years at Coburn Plumbing Supplies with jobs associated with heavy lifting and there is no documentation of additional heavy lifting during that period. Therefore, the back condition that lead to the lumbar disc and fusion surgery on 3/21/07 as well as the disc narrowing, spondylolisthesis and spondylosis in 2005 which occurred 27 and 29 years, respectively, following the MVA are likely to represent a separate and discrete disease process which is more likely due to chronic job-associated wear and tear as opposed to the prior injury in service. The Board acknowledges the Veteran’s contention that he was not injured following his separation from service, at work. 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). The Veteran has a current diagnosis of arthritis as evidenced by a January 2014, x-ray. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, 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. VA treatment records show the Veteran was not diagnosed with a lumbar spine disorder until April 2005, nearly 27 years after his separation from service, and years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of intermittent lower back pain since service, he is not competent to provide a diagnosis in this case, or determine that these symptoms were manifestations of degenerative disc disease of lumbosacral spine as the Veteran has not demonstrated the necessary medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record does not provide competent, credible evidence of ongoing, persistent, or continuous complaints or symptoms of a lower back disability, as required under 38 C.F.R. § 3.303. The Board weighed the medical VA examinations, VA treatment records, and the Veteran’s testimony and found the most probative evidence are the VA examinations, due to their thoroughness, in the evaluation process, and the consideration of the Veteran’s medical history. Thus, service connection may not be presumed here based on continuity of symptomatology under 38 C.F.R. § 3.303. The Board also considered the January 2014 examiner’s opinion, that indicated that the 2005 x-ray showed that the disk narrowing spondylolisthesis was caused by the congenital spondylolysis. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). VA General Counsel Precedent Opinion has held that service connection may not be granted for a defect but may be granted for disability which is shown to have resulted from a defect which was subject to a superimposed disease or injury during service. VAOPGCPREC 82-90 (Jul. 18, 1990). Furthermore, the opinion said that none of the Veteran’s diagnosed low back conditions (including the disc narrowing, spondylolisthesis, and spondylosis) were diagnosed in service or are related to the in-service MVA. Thus, even if the Veteran has a congenital lumbar spine condition, there is no evidence that another condition was superimposed upon it during service. Service connection for a lower back disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s lower back disability and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of intervertebral disc syndrome, and evidence shows that in-service injury occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of intervertebral disc syndrome, began during service or is otherwise related to an in-service injury, event, or disease. Here, the Veteran is unable to demonstrate that there is direct service connection because there is no nexus between is lower back disability and service. Consideration has also been given to the Veteran’s personal assertion that his MVA is related to active service, and that he did not injure himself at work. The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. The Board also considered the January 2014 and June 2019 VA medical opinions, and the April 2020 addendum, and taken together, were consistent in establishing that the Veteran’s intervertebral disc syndrome is not at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s contention that his condition is the result of the June 1978, MVA. The combined rationale was that the Veteran’s back condition was not related to service. The examiners were unable to find objective evidence that demonstrated that the Veteran’s lumbar spine disorder was caused by the June 1978, MVA. In addition, the back condition that lead to the lumbar disc and fusion surgery, as well as the disc narrowing, spondylolisthesis and spondylosis, which occurred 27 and 29 years, respectively, following the MVA are likely to represent a separate and discrete disease process which is more likely due to chronic job-associated wear and tear as opposed to the prior injury in service. The Board finds the examiners’ combined opinions are highly probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In summary, service connection is unwarranted on a direct basis. Finally, neither the Appellant nor his representative has raised any issues with the duty to notify or duty to assist regarding the claim denied above. 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). In conclusion, the Board finds that service connection for a back injury, is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the evidence is against the claim. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.