Citation Nr: 21003069 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-27 557A DATE: January 19, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spondylosis 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. 2. The Veteran has no awards or decorations denoting engagement in combat with the enemy or direct combat participation and there is no other credible evidence that indicates the Veteran engaged in combat with the enemy. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1961 to September 1981, including in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was originally denied by the Board in a March 2019 decision. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). By way of a January 2020 Order, the Clerk of the Court granted a Joint Motion for Partial Remand (JMPR), which vacated the Board’s decision and remanded the matter for adjudication consistent with its terms. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). Service Connection Entitlement to service connection for a low back disability The Veteran asserts that his current back disability began during active service and is related to back injuries sustained during active service. 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-element test for service connection requires evidence of: (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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Analysis The Veteran’s representative has argued that the Veteran’s back injury was incurred as a result of combat. In the January 2020 JMPR, the parties stipulated that the Board erred by failing to consider and determine whether the Veteran is a “combat veteran” under 38 U.S.C. § 1154(b) and discuss whether the presumption under 38 U.S.C. § 1154(b) was applicable to his claim. The Board acknowledges that in September 2014, when the Veteran sought treatment from a private provider for his back, he reported having injured his back during the Vietnam war in 1970 when lifting an ammunition box and taking it back to a foxhole. In a September 2020 statement, the Veteran again reported that in 1970, while in Vietnam and under fire, he injured his back when he lifted an ammunition box the wrong way and suffered a strain. If a veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). In the case of a combat veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Thus, the reduced evidentiary burden only applies to the question of service incurrence, and not to the remaining service-connection elements of current disability and nexus. The Veteran’s DD 214 shows service in Vietnam and a military occupational specialty of supply management superintendent. The DD 214 also shows receipt of medals and awards including the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Republic of Vietnam Gallantry Cross with device and Air Force good conduct medals; however, none of these awards and medals are indicative of combat service. Service personnel records do not reflect receipt any medals or awards indicative of combat. These records also do not reflect any indication that the Veteran participated in combat, including while stationed in Vietnam. There is insufficient evidence to find the Veteran engaged in combat with the enemy, such that he may be considered a ‘combat veteran.’ 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. During service, the Veteran was seen for complaints of back pain. In October 1963 the Veteran sought treatment for back pain after he lifted a heavy object. In April 1969, he sought treatment again for back pain. In May 1981, the Veteran sought treatment for low back pain. He denied trauma, but reported that he had done light physical work. Treatment providers assessed muscular low back pain. A subsequent quarters check showed that the Veteran reported that he felt fine, had no pain at all, and wanted to go back to work. Shortly after discharge from active service, the Veteran underwent a VA examination in November 1981. Physical examination of the lumbar spine failed to reveal any evidence of abnormalities. There was no paraspinal muscle spasm, no restriction in walking, no tenderness on percussion or palpation, and normal range of motion. X-rays of the lumbar spine showed normal alignment and curvature, normal bodies and interspaces, and unremarkable sacroiliac joints. There were no further near-in-time medical records or statements related to the back condition. In September 2014, the Veteran sought treatment from a private provider for his back. He reported that he injured his back during the Vietnam war in 1970, when he was lifting an ammunition box and taking it back to a foxhole. The treatment provider assessed mild to moderate degenerative disc disease throughout the lumbar spine. The treatment provider concluded, “No doubt this patient likely had a disk injury in 1970 when he lifted the ammo box.” The Veteran underwent a VA examination in December 2014. The examiner diagnosed degenerative lumbar spondylosis with disc desiccation. He opined that the current back condition is less likely related to active service. The examiner noted that the Veteran was treated for back pain after lifting heavy objects in October 1963, that he was treated for back strain in April 1969, and that he was treated for low back pain in May 1981 after lifting a washer at home. He further noted that the April 1981 separation examination was normal. Further, the examiner noted that a post-discharge November 1981 VA examination of the dorsolumbar spine failed to reveal any evidence of abnormalities, and that an associated x-ray of the lumbar spine was negative. He explained that the current disc degeneration and accompanying arthritis is a common development. Age related changes are present in 40 percent of adults over age 35, and in almost all individuals over age 50. He concluded that the Veteran’s degenerative lumbar spondylosis was a stand-alone entity, and that it was neither due to nor aggravated by military service. In a September 2020 statement, the Veteran reported that he first injured his back in October 1963. He reported that he hurt his back while helping his team put in washers and dryers for hours. He reported that he injured his back a second time in 1970. He again stated that, while under fire in Vietnam, he lifted an ammunition box the wrong way and strained his back. Finally, he reported that in 1978, while stationed in Germany, he strained his back when he was unloading a truck. The preponderance of the evidence weighs against finding that the Veteran’s current back disability began during service or is otherwise related to an in-service injury, event, or disease. The Board acknowledges that the Veteran had treatment for back pain or strain in 1963, 1969, and 1981. Further, the Board has considered the Veteran’s assertion that he reports back pain/strain in 1978 and that he injured his back in Vietnam around 1970 by lifting an ammunition box, although service treatment records do not reflect evidence of such. These service events notwithstanding, the December 2014 VA examiner opined that the Veteran’s current back disability is not at least as likely as not related to an in-service injury, event, or disease, including in-service back pain after lifting heavy objects. The examiner provided a sound rationale for his opinion. He noted that the separation examination and VA examination shortly after service revealed normal low back physical and x-ray findings. The examiner further explained that disc dehydration is common, and that age-related changes of the lumbar spine are present in almost all adults over the age of 50. 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). The Veteran’s representative contends that the December 2014 VA examination report is inadequate, because it failed to address the specific injury the Veteran sustained while in combat and failed to provide a rationale specific to the Veteran’s circumstances. The Board disagrees. First, the Board notes that the VA examination report specifically indicates that the VA examiner reviewed the underlying records and conducted an in-person examination before providing an opinion. Moreover, the VA examiner specifically recounted the Veteran’s report of acute low back pain after lifting an ammunition box in the medical history. The examiner also noted specific instances of treatment for low back pain in the available service treatment records, as well as the 1981 VA examination report. The examiner’s negative 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). The Board has considered the September 2014 opinion provided by the Veteran’s private treating provider and finds it is not persuasive nexus evidence. Specifically, the opinion is afforded little probative weight as no rationale was provided. Moreover, there is no indication that the treatment provider considered relevant medical evidence, such as service and post-service treatment records regarding the Veteran’s back disability in making his conclusion. Therefore, this evidence is outweighed by the more persuasive opinion of the VA examiner, who opined there is no etiological relationship between the Veteran’s in-service treatment for back pain and his current lumbar degenerative disc disease. The Veteran believes his low back disability is related to an in-service injury, event, or disease but he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has 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 December 2014 VA examination report. As the VA examination report includes arthritis, the Board has considered whether presumptive service connection is warranted for a chronic disease or whether a nexus may be established based on a continuity of symptomatology framework. As there is no competent evidence of arthritis within a year of service discharge; it is not presumed to have onset in service. 38 C.F.R. § 3.307, 3.309. Service connection under the chronicity and continuity of symptomatology framework is not warranted. Arthritis was not noted in service. To the extent that the Veteran asserts he has experienced back pain since service, this is contradicted by his statements during the May 1981 discharge examination, where he denied any recurrent back pain. Further, the competent and persuasive VA opinion outweighs any lay assertion that recurrent back pain after service was a manifestation of arthritis that onset in service. Accordingly, 38 C.F.R. § 3.303 (b) does not provide an avenue to grant the claim. (Continued on the next page)   For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for a low back disability. There is no reasonable doubt to be resolved as to this issue. Service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.