Citation Nr: 21001688 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 09-27 949A DATE: January 11, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran’s low back disability was not manifested in service or within the one year following separation and is not related to his military service. CONCLUSION OF LAW The Veteran’s low back disability was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1974 to May 1975, from February 1976 to October 1976 and from August 1978 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2011, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran’s electronic claims folder. Entitlement to service connection for a low back disability The Veteran contends that he is entitled to service connection for a low back disability because he injured his back during a 1976 accident during active service. Specifically, the Veteran testified that a safety hatch fell on him and hit his chest and back. See Board Hearing Transcript, pp.16-17. For the reasons explained below, the Board finds that entitlement to service connection is not warranted. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection on a presumptive basis is also warranted for certain chronic diseases, including arthritis. 38 C.F.R. §§ 3.307, 3.309. There is evidence that the Veteran has a current disability – namely degenerative disc disease of the lumbar spine. Service treatment records indicate that in April 1976, the Veteran was treated for chest pain after a hatch fell across his chest. On the Veteran’s 1978 entrance report of medical history, he reported that he felt great, but endorsed a history of recurrent back pain. In August 1981, the Veteran complained of recurrent back pain and underwent an x-ray which indicated negative results. Post service records indicate that around 1998, the Veteran twisted his back while working. In a January 2020 medical opinion by Dr. M.P., the clinician opined that it was less likely than not that the Veteran’s low back disability was related to service. The clinician explained that the Veteran reported that the impact of the hatch was in the nipple line and when asked about impact on his back, the Veteran “decisively reported that it was at same level as chest impact, meaning it would be a thoracic level injury. Veteran’s lower lumbar spine is his current back disability. He reports no thoracic symptoms and on physical examination thoracic spine was non-tender.” In a January 2020 medical opinion by Dr. K.F., the clinician opined that it was less likely than not that the Veteran’s back disability was related service. The clinician reasoned that although the 1981 x-ray request states that the Veteran experienced back pain for 5 years, the Veteran’s complete history and entrance physical examination was silent for back pain. The clinician noted that the Veteran wrote, “I feel great,” on his August 1978 medical history report and “generally individuals having ongoing back pain do not write such a statement. The clinician noted that 3 previous board certified doctors have also arrived at the same conclusion regarding the etiology of the Veteran’s claimed low back disability. The Board finds the January 2020 VA clinicians’ opinions probative. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The clinicians opined against a nexus between the Veteran’s back disability and service. The clinicians addressed all potentially favorable evidence, including the Veteran’s claims of continuity of symptoms. The first clinician found that the area in which the Veteran claimed the in-service injury was of a different position from his currently claimed back disability. Ultimately, the clinicians found that the Veteran’s back disability was not related to service. Further, the Board draws attention to the Veteran’s 3 different periods of active service. His alleged back injury occurred in 1976 (during his second period of active service); however, the Veteran enrolled for a third period of service in 1978 and no back disabilities were noted. Although he gave a history of recurrent back pain, there was no indication that at the time of induction, he was suffering from any back pain that would affect his ability to enroll and which also contradicst his report that he consistently had back pain since the incident. It is clear that the Veteran believes that a nexus exists. Such a lay belief sometimes is sufficient. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). It indeed is error to suggest that lay evidence can never be enough to establish that there is a nexus between a claimed condition and service. See Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). However, the causal relationship between the Veteran’s claimed back degenerative disability and service is a complex medical issue for which the Veteran is not qualified to offer an opinion. Thus, while the Board has considered the Veteran’s statements, it finds the VA examination opinions to outweigh them. Finally, the Board observes that service connection may be awarded on a presumptive basis for certain disabilities such as arthritis that become manifested within a proscribed period following active military service. 38 C.F.R. §§ 3.307, 3.309. In this case, however, the Veteran’s degenerative joint disease was not initially manifested within a year following service. Regarding continuity of symptomatology, although the Veteran claims to have had back problems since service separation, he did not report any back problems on his January 1982 Application for Compensation (where he claimed entitlement to service connection for a chest injury that occurred at the same time as the alleged back disability). Although he was not required to file a claim for his back disability at the same time, it stands to reason that if he were suffering from a back disability, he would have reported it. The Board notes that in an August 2019 statement, the Veteran alleged that he made a claim for his back disability in 1981 or 1982. However, there is no evidence of such a claim. Accordingly, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. Given that the Board has found the unfavorable January 2020 VA medical opinions to be the most probative evidence of record, the preponderance of the evidence is against the Veteran’s claim for service connection, and the claim must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Baskerville 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.