Citation Nr: 21001882 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-65 776 DATE: January 12, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT A low back disability, to include degenerative arthritis, did not have its onset in service, did not manifest within the one-year presumptive period, and is not otherwise related to the Veteran’s active military service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by the Veteran’s military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 101, 1101, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1963 to March 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran’s claim of entitlement to service connection for a low back disability. He disagreed with the denial and a statement of the case (SOC) was issued in September 2018. The Veteran subsequently perfected a timely appeal. The Veteran was scheduled to appear at the Boise RO for a videoconference hearing before a Veterans Law Judge in June 2019. However, the Veteran, through his representative, withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). In an October 2019 Board decision, the claim was remanded for further evidentiary development. As will be detailed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran died in June 2020 while this claim was on remand. In September 2020, the RO recognized the appellant as a valid substitute claimant in place of the Veteran as to the pending service connection claim. A supplemental statement of the case (SSOC) was issued in October 2020. The VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for a low back disability. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In this matter, the Veteran asserted entitlement to service connection for a low back disability, which he contends was incurred during his active duty service. See the notice of disagreement (NOD) dated February 2018. For the reasons set forth below, the Board finds that entitlement to service connection for a low back disability is not warranted. The Veteran's service treatment records (STRs) show that he reported a history of wearing a back brace following a whiplash accident two years prior. However, a continuing diagnosis of a back disability was not indicated. STRs dated in December 1963 indicate that the Veteran complained of back pain and was diagnosed with a mild back strain by ultrasound. His January 1965 separation examination did not document any on-going complaints of back pain. The Veteran's treatment records dated in December 2009 and May 2011 documented his report of occasional back pain. An x-ray of the lumbar spine conducted in June 2012; diagnoses of mild spondylosis and mild degenerative sacroiliitis were indicated. The Veteran was afforded a VA examination in February 2018 documented a continuing diagnosis of degenerative arthritis of the lumbar spine. The examiner concluded that the diagnosed lumbar spine disability was less likely than not incurred in or caused by his military service. The examiner provided the following rationale, “[t]his Veteran was treated for a low back muscle strain with Robaxin and physical therapy December 3, 1963 while stationed active duty (AD) [at] Fort Lee, Virginia, making it less likely than not that his current back pain is more likely related to his current developed chronic spondylolysis/listhesis as well as his mild facet arthropathy and early DJD involving his SI joint conditions.” As noted in the October 2019 Board decision, the rationale provided by the February 2018 VA examiner was nonsensical and essentially provides no explanation for the conclusion rendered. As such, the Board finds that the examiner's opinion is of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board therefore remanded this matter in October 2019 in order to obtain a new VA medical opinion as to the etiology of the Veteran’s claimed low back disability. Pursuant to the Board Remand, a VA medical opinion was obtained in October 2020 at which time the examiner concluded that the claimed low back disability 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 noted that the Veteran’s STRs show he complained of back pain in December 1963; specifically, he was treated for back trouble of the mid lumbar region with moderate muscle spasm. The Veteran was subsequently seen three times for ultrasound of the paravertebral muscles. However, there was no further mention of any chronic back disability in service. The examiner explained that, following the Veteran’s separation from service, there was no indication of any back symptoms for 47 years. The examiner noted that the Veteran was diagnosed with mild spondylosis and mild degenerative sacroiliitis in 2012. The examiner stated that these findings “are consistent with the Veteran’s age at that time (73).” To this end, the examiner noted a June 2012 letter to the Veteran in which his primary care physician stated, “[y]our back x-rays showed arthritic changes to your back that occur with hard work and aging…” The examiner stated that the Veteran’s occupational history demonstrates that he worked for a ship builder for 33 years in the machine shop division and retired as a foreman. The examiner concluded, “[g]iven all of the above, it appears that Veteran’s in-service back pain was acute and transitory, and that his DJD and symptoms starting in 2012 were the result of aging and intercurrent injury and activity, such as working in the manufacturing industry for 33 years.” The examiner concluded, “[t]herefore, Veteran’s low back disability is less likely as not incurred in or caused by the back pain in December of 1963 (diagnosed as mild back strain) during service.” When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant’s medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). With respect to the current claim, the Board finds that the medical evidence demonstrating the absence of nexus between the currently diagnosed low back disability, to include degenerative arthritis, and the Veteran’s active duty service outweighs the medical evidence suggestive of a nexus. Significantly, the October 2020 VA examiner has found no nexus between the Veteran’s military service and his diagnosed disability. Critically, as indicated above, the October 2020 VA medical opinion is based on review of the Veteran’s medical history, as well as interview and physical examination. The Board therefore places significant weight on the findings of the VA examiner as expressed in the October 2020 medical opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Finally, although the record shows a diagnosis of degenerative arthritis, there is no probative evidence that arthritis was noted in service with continuity of symptomatology since service that is attributable to the chronic disease, nor is there any indication that arthritis was manifest to a compensable degree within one year of service separation. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Rather, the most probative evidence reflects that the Veteran’s diagnosed arthritis was age-related. Based on a review of the evidence, the Board finds that service connection for a low back disability is not warranted. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran’s assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). (Continued on the next page)   The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran’s favor when the evidence is in equipoise. Considering the record, including post-service medical evidence, October 2020 VA examiner’s opinion, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the preponderance of the evidence is against the claim of entitlement to service connection for a low back disability. Thus, the benefit-of-the-doubt rule does not avail the appellant. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.