Citation Nr: 20055455 Decision Date: 08/21/20 Archive Date: 08/21/20 DOCKET NO. 15-14 417A DATE: August 21, 2020 ORDER Service connection for a low back disability is denied. FINDING OF FACT The Veteran has a diagnosis of degenerative disc disease (DDD), status post lumbar spine surgery, which is not related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been 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 in the Army from March 1982 to March 17, 1985. He also served from March 18, 1985, to November 1990, which resulted in a dishonorable discharge, thus rendering him ineligible for benefits for this later period of service. In August 2019, the Veteran testified at a Board hearing before the undersigned at the RO, and a transcript of that hearing is of record. In November 2019, the Board determined that new and material evidence had been received to reopen the claim for service connection for a low back disability, and remanded and remanded the issue to obtain a medical opinion on the likely nature and etiology of the claimed low back disability. The Veteran subsequently had a VA examination in January 2020 and the examination report, including a medical opinion, is associated with the claims file. The Board therefore finds there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Service connection for a low back disability. The Veteran contends that he injured his back during his first week in Korea in 1982 while lifting a howitzer trail. He went to an aid station and was told he had a muscle strain. After separation from service, the Veteran tried “a wide variety of things” to treat his back pain, including physical therapy and TENS units, but he continued to have pain. See the August 2019 Board hearing transcript. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or an injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability also may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disability or if it is aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Here, the Veteran has a current diagnosis of degenerative disc disease (DDD), status post lumbar spine surgery. Thus, the current disability requirement for service connection for a low back disability is satisfied. The question for the Board is whether the Veteran’s current low back diagnosis either began during his first period of active service (for which he is eligible for VA benefits), or is etiologically related to an in-service disease or injury. The Board finds that the probative evidence establishes that the low back DDD, status post lumbar spine surgery, is not etiologically related to the Veteran’s first period of active service. Service treatment records (STRs) indicate that in a July 1981 service enlistment examination, the Veteran’s spine was found to be clinically normal. In October 1982, the Veteran reported having lower back pain for the last month, including having difficulty straightening up after bending over. He was assessed as having a muscle sprain in the lower back. In an April 1984 medical screening report, the Veteran denied having a history of arthralgias/myalgias of one month or more. Post-service treatment records indicate that in a September 1992 VA examination, the Veteran reported having back pain that started in 1983. He currently had low back pain when he bent over or lifted anything. On examination, he was noted to have a normal gait, dressed and undressed easily, and climbed off and on the table easily. He had 95 degrees of flexion, 35 degrees of extension, and could bend to the right and left 40 degrees and rotate 35 degrees. There were no muscle spasms, he could squat and rise without difficulty, stand on tiptoes and walk, stand on heels and walk, and straight leg raising was normal. X-rays of the lumbosacral spine were normal. The examiner diagnosed a history of low back pain with normal x-rays and no functional disability. A June 2003 MRI of the lumbar spine showed mild diffuse congenital narrowing of the lumbar spinal canal, bulging disc material bilaterally at L3-4 and L4-5, and no disc protrusion or nerve root compression. A June 2005 private treatment record indicates that the Veteran had a mild deformity of the thecal sac at L3-4 and L4-5, where subtle disc bulges were slightly accentuated by a spinal canal that was very slightly decreased in size, and degenerative hypertrophy of the sacroiliac joints with fusion on the right. In August 2017, the Veteran reported having back problems since hurting his back in 1982, which had gotten worse in the last six months. He had a microdiscectomy on the right at L2-L3. The Veteran another VA thoracolumbar spine examination in January 2020. He reported that he injured his back in service while lifting a piece of artillery equipment. He was told it was a sprain and was sent back to work. The examiner indicated that the Veteran had DDD of the lumbar spine and was status post surgery. The examiner concluded that the current back diagnosis was less likely than not incurred in or caused by the in-service back strain. The rationale was that the medical evidence failed to support a chronic lumbar strain condition after treatment in 1982. As support for her conclusion, the examiner noted the 1984 treatment record in which the Veteran denied having arthralgias/myalgias and noted there was not objective evidence of DDD until 2003, which was approximately 18 years after the relevant period of active duty service. The examiner also noted that current medical literature provided that back sprains/strains are muscular events that are considered episodes of acute back pain associated with specific activities or events, and are generally transient, self-limited, and respond to rest and medication. Different episodes are caused by different activities at different times, and are not related to, nor caused by, prior episodes. Moreover, back strains do not cause degenerative disease of the spine; medical literature indicates that degenerative changes are due to aging and daily/occupation stresses and/or injury over many years after separation from active duty. The Board finds that the VA examiner’s opinion is competent and credible, and as such, entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The opinion was rendered after reviewing the Veteran’s STRs and other medical records, soliciting a medical history from the Veteran, and conducting a physical examination and clinical testing of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner’s access to the claims folder and the Veteran’s history, and the thoroughness and detail of the opinion). The VA examiner provided facts and rationale on which she based her opinion, including expressly discussing STRs and post-service medical records. Furthermore, neither the Veteran nor his representative has produced a medical opinion to contradict the conclusion of the VA examiner. As such, there is no competent medical evidence that relates the current lumbar spine DDD to military service. The Board also finds that although the Veteran can describe observable symptoms including pain, his statements cannot be used to determine whether a low back diagnosis is related service or to an in-service injury. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). There is no evidence that the Veteran has the medical education and training required to make competent clinical diagnosis, or to attribute such a diagnosis to specific events or injuries. As such, the Board finds the Veteran’s statements probative with regard to establishing his current symptoms, but finds little probative value with regard to establishing service connection. In any case, their probative value is outweighed by the probative value assigned to an evaluation conducted by a person who has expertise and training pertinent to lumbar spine diagnoses. In sum, the weight of the competent and credible evidence of record weighs against the claim for service connection for a low back disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.