Citation Nr: 21001659 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 14-15 359 DATE: January 11, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a low back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability 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 had active service from August 1984 to August 1987. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in July 2012. In his April 2014 substantive appeal, the Veteran requested a Board hearing. A hearing was scheduled for May 2018, and the Veteran requested that the hearing be rescheduled. The hearing was then rescheduled for August 2018, but the Veteran failed to report for such hearing. The Veteran has not provided good cause for his absence or a request to reschedule the hearing; therefore, his hearing request is withdrawn. 38 C.F.R. § 20.704 (d). This case was previously remanded to the AOJ in November 2015 and October 2018 for additional development, and was subsequently returned to the Board. 1. Service connection for a low back disability The Veteran contends that he has a current low back disability, to include low back pain and spasms, due to daily heavy lifting during service as a field artillery repairman. See his April 2014 substantive appeal. He said that during service, he had to lift shells that weighed an average of 80 pounds, and moved equipment. He stated that every day he lifted about 65-85 pounds of equipment 10 to 15 times per day, and also replaced the tracks on tanks. In a December 2011 statement, he said he was not sure how much evidence would be in his service treatment records, since his military occupational specialty (MOS) kept him away in the field for 21 days or more during simulated war trainings, and therefore he suffered in service because he could not be seen by medics. The Veteran's service personnel records show that his primary MOS was artillery repairer. 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-elements required to establish service connection are: (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). The Board notes that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). 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 low back strain (see June 2020 VA medical opinion), and evidence shows that he reported recurrent back pain in service, the preponderance of the evidence weighs against finding that the Veteran’s current diagnosis of low back strain began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records are negative for treatment or diagnosis of a back disability. In reports of medical history dated in December 1986 and June 1987, the Veteran reported a history of recurrent back pain. On medical examination in December 1986 and on separation medical examination in June 1987, his spine was clinically normal. There is no evidence of post-service complaints, treatment or diagnosis of a low back disability, and the Veteran did not contend that he had a current low back disability that was incurred in service until his December 2011 claim. VA medical records show the Veteran was not diagnosed with a low back disability until June 2020, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of low back strain. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The January 2016 VA examiner evaluated the Veteran and determined that, while he reported subjective symptoms of chronic low back pain with intermittent muscle spasms in the low back, he did not have a diagnosis of a thoracolumbar spine (back) condition. The examiner indicated that pain was noted on examination, but it did not result in or cause functional loss, and no muscle spasms of the low back were seen. The June 2020 VA examiner opined that the Veteran’s low back strain is not at least as likely as not related to an in-service injury, event, or disease, including in-service complaints of recurrent low back pain. The rationale was that there is no evidence the Veteran sought care for a back condition, and this suggested acute, self-limited episodes. There was no evidence of care proximate to service, and if a back condition began in service and continued after service, it almost certainly would have manifested less than 30 years later. The examiner opined that if the Veteran's current low back strain arose in service, it is unlikely the Veteran would have had the paucity of findings shown on the January 2016 Disability Benefits Questionnaire (DBQ). Therefore, it is less likely than not that the Veteran's current low back strain had its nexus in service or is due to events in service. If a chronic condition had arisen in service, it would be expected to be far more severe 30 years later. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). (Continued on the next page)   The Veteran and his spouse believe his current low back disability is related to an in-service injury, event, or disease. The Veteran and his spouse in this case are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran and his spouse because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the January 2016 VA examination and June 2020 VA medical opinion. The appeal is therefore, denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.