Citation Nr: 21001180 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 10-24 632 DATE: January 7, 2021 ORDER Service connection for back disability is denied. FINDING OF FACT The Veteran’s back disability 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, to include the Veteran’s engagement in combat with the enemy. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from August 1967 to August 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in March 2018. A transcript of the hearing is of record. Subsequently, the Board remanded this matter in May 2018 and April 2020 for further development. Service connection for back disability is denied. The Veteran and his representative contend the Veteran’s back disability is related to engagement in combat with the enemy and from carrying ruck sacks and weapons in service as a light weapons infantryman. See Board Hearing Transcript, dated March 14, 2018. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain chronic diseases (e.g., arthritis) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service, but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). The Veteran has a current diagnosis of lumbosacral strain, spondylolisthesis, and degenerative disc disease as evidenced by the August 2019 VA examination. The diagnosis of degenerative disc disease reasonably qualifies as a chronic condition under 38 C.F.R. § 3.309(a) as arthritis, since degenerative disc disease involves degeneration of the discs of the back; 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. At an August 2019 VA examination, the Veteran reported that his back pain began in 2007. Furthermore, the first treatment record illustrating evidence of a back condition is an April 2010 VA treatment note that reflects the Veteran reported having low back discomfort and limitation of motion when waking up in the morning. The Veteran reported those symptoms had been occurring in the two months leading up to the examination. There is no evidence of a diagnosis of a lumbar spine degenerative condition until after 2010, decades after his separation from service and decades outside of the applicable presumptive period. In addition, the Veteran has not reported that he had symptoms of a back disability in service or during the presumptive period. Hence, a preponderance of the evidence is against a finding that any back disability manifested to a compensable degree in service or within one year of the Veteran’s service discharge. As such, presumptive service connection for a back disability as a chronic disease is not warranted. The Board has also considered whether service connection is warranted for his back disability based on a continuity of symptomatology theory of entitlement. However, as is noted above, the earliest the Veteran has related his back pain to have begun is in 2007, which is about 38 years after the Veteran’s discharge from service. Therefore, the Board finds that service connection is not warranted based on a continuity of symptomatology theory of entitlement. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1331; 3.307, 3.309(a). Service connection for a back disability may still be granted on a direct basis. As noted above, the record reflects the Veteran has a current back disability. Additionally, the Veteran’s service records reflect that he served in Vietnam as a light weapons infantryman and received the Purple Heart medal. Therefore, the evidence reflects that the Veteran engaged in combat with the enemy. His statements regarding the conditions of his service in Vietnam and the nature of his duties is consistent with the places, types, and circumstances of such service and they are sufficient proof of an in-service event related to a back disability. 38 U.S.C. § 1154(b). However, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s back disability and an in-service injury, event or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Following an August 2019 VA examination, the VA examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by his service. In support of the opinion, the VA examiner noted the Veteran’s dates of service and noted that a December 1969 examination report is silent for a back condition. In addition, the VA examiner noted that the medical evidence of record is silent for any reports of a back condition until 2010, so there is no evidence of chronicity or continuity of care from 1969 to 2010. As the August 2019 VA opinion does not reflect consideration of the Veteran’s lay reports that engagement in combat with the enemy and carrying ruck sacks and weapons caused his chronic back pain, the Board remanded the claim in April 2020 to obtain an additional VA opinion. The Board also places little weight of probative value on this opinion as it did not consider the Veteran’s competent and credible lay statements regarding his combat service. Following a September 2020 VA examination, the VA examiner opined that the Veteran’s back condition was less likely than not related to the Veteran’s military service of engagement in combat with the enemy and/or from carrying rucksacks and weapons in service as a light weapons infantryman. In support of the opinion, the VA examiner reasoned that there are no medical records showing a diagnosis or treatment for the back condition during active duty or after active duty, which was now over 50 years ago. Furthermore, the VA examination report reflects consideration of the Veteran’s testimony at the March 2018 Board Hearing that he carried rucksacks and weapons during his service. Therefore, given the that the September 2020 VA examiner provided a thorough review of the record, examined the Veteran, took into consideration the Veteran’s prior medical history and lay statements regarding his service, and provided a sufficient rationale for the Board to evaluate the claim, the Board gives much probative weight to the September 2020 VA examiner’s opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). While the Veteran believes his back disability is related to engagement in combat with the enemy and from carrying ruck sacks and weapons in service as a light weapons infantryman, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the September 2020 VA examiner’s opinion. In summary, the preponderance of the evidence is against a finding that the Veteran’s current back disability is related to service. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.