Citation Nr: 21002549 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 19-23 329 DATE: January 14, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT A low back disability was not manifested in service, arthritis of the low back was not manifested within a year following the Veteran’s separation from active duty service; and his current low back disability is not shown to be etiologically related to his service. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from April 1964 to April 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decisions. In October 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. In February 2020 and August 2020, this matter and a claim of service connection for depression were remanded for additional development. A November 2020 rating decision granted service connection for mixed anxiety and depressed mood. Accordingly, that matter is no longer on appeal. Entitlement to service connection for a low back disability is denied. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time following separation from service (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). A January 1966 service treatment record (STR) notes the Veteran was seen with complaints of low back pain. Treatment with heat was prescribed. In an April 1966 report of medical history, he reported he was in good health; he denied having ever worn a brace or back support. On April 1955 separation examination, his spine was normal on clinical evaluation. On August 2005 primary care initial evaluation the Veteran did not report a history of back pain. On physical examination his back curvature was normal, and there was no pain on pressure applied along the thoraco-lumbar spine, and no paraspinal muscular spasm. A June 2006 treatment record notes the Veteran’s complaints of occasional lower back pain; it was noted his occupation was truck driver. At the October 2019 videoconference hearing, the Veteran testified that he was in the infantry and participated in many exercises and drills. He testified that his duties included unloading large containers. He also testified that he bought a heating pad while on active duty, but did not seek medical attention for his back while on active service. He also testified he participated in road marches with a rucksack. A February 2015 nursing note record notes the Veteran was seen with complaints of lower back pain for the past 30 days. On February 2020 lumbar spine X-Ray, the impression was osteoarthritic changes of the lumbar spine with prominent ventral marginal spurs and osteopenia. On February 2020 back conditions DBQ, the diagnoses were lumbosacral strain, and degenerative arthritis of the spine. The Veteran reported a history of back pain that started in service with carrying of large food containers. The examiner opined that the Veteran’s back pain was due to degenerative arthritis of the lower back. It was noted that on separation, the Veteran did not report lower back pain. The examiner stated that the etiology of lumbar strain is usually body habitus and age. In an October 2020 medical opinion (based on review of the record), the provider opined that it was less likely than not that the Veteran’s low back disability is related to his service. The examiner noted that the Veteran’s initial patient history in August 2005 was negative for back pain. The examiner opined that it was more likely than not that the Veteran’s low back disability arose after August 2005. The examiner identified an alternate, non-service-related, etiology for the Veteran’s low back disability, the natural aging process. At the outset, the Board finds that there has been substantial compliance with its August 2020 remand directives in this matter. The October 2020 opinion provider specifically noted the Veteran’s report’s and brother’s lay reports that he had back pain complaints on separation that were unreported, but were self-treated. In response he explained that the service separation document is medical evidence that the spine was normal on service separation; he further explained, in essence, that the current disability of arthritis in the back is established by X-ray and cannot be established merely by complaints of pain and identified an alternate, more likely etiology. The Veteran contends that his current back disability is etiologically related to back pain in service. It is not in dispute that he now has a low back disability (including degenerative arthritis of the lumbar spine). His STRs show that during service he was seen once for a complaint of low back pain, and treatment with heat was prescribed. However, the records also show that the low back pain complaint in service, resolved (as such complaint was not noted on examination months later, when no low back pathology was found. Thus a chronic low disability is service is not shown. While the Veteran has more recently reported, including in hearing testimony which is supported by his brother’s testimony, that he wrote home about his back pain in service, the consulting VA provider has explained that reports of back pain of themselves do not establish an underlying diagnosis of back arthritis. The provider cited to the finding of a normal spine on service examination and to the absence of back complaints or abnormal back findings on initial VA examination (nearly 4 decades after service, in 2005) in concluding that arthritis of the spine was not manifested in the first post-service and that continuity of back arthritis since service is not shown. Consequently, service connection for a low back disability on the basis that a chronic such disability became manifest in service and persisted, on a chronic disease presumptive basis (for arthritis of the low back under 38 U.S.C. §§ 1112, 1137) or based on continuity (under 38 C.F.R. § 3.303(b)) is not warranted. Under these circumstances, whether a currently diagnosed low back disability is etiologically related to injury or complaint in remote service is a medical question, beyond the scope of common knowledge or capability of resolution based on lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not submitted any medical textual evidence or medical opinion in support of his claim. The competent (medical) evidence in the record regarding the etiology of the Veteran’s low back disability consists of the opinions on VA examination and on review of the record and is all against the Veteran’s claim. Of these the Board finds most probative the October 2020 consulting provider's opinion. The provider acknowledged the Veteran’s lay statements reporting of injury in service, and self-treatment of unreported pain, and opined that it is less likely than not that the Veteran's back disability is related his service. The provider discussed/expressed familiarity with the accurate factual record, and explained the rationale for the conclusion reached, with citation to supporting facts and medical principles. The provider also identified other, non-service-related, factors to which the current low back disability is more readily attributed and acknowledged the Veteran’s and other lay statements in support of the claim and explained why they are insufficient to establish that the current low back arthritis was manifested in service or in the first postservice year, or is etiologically related to his service. The Board finds the opinion to be probative evidence in this matter. As the Veteran has not presented any competent evidence to the contrary in support his claim, the Board finds the October 2020 provider’s opinion persuasive. While the Veteran is competent to report what he experienced, and describe his activities in service, he does not cite to supporting medical opinion or treatise evidence for his opinion that the current back disability is related to his activities or complaints in service (or address/explain why his current low back disability would not be more readily attributed to the non-service-related etiological factors identified by the consulting medical providers). The Board has no reason to question the credibility of the testimony the Veteran and his brother provided at the October 2019 video conference hearing. However, they are both laypersons, and their opinions are not competent medical evidence on the matter of a nexus between the Veteran's current back disability and his service. Considering the foregoing, the board finds that the preponderance of the evidence is against the Veteran's claim. Accordingly, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.