Citation Nr: 21004002 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-40 558 DATE: January 25, 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 the Veteran's current back disability began during active service or is otherwise related to an in-service injury or disease; degenerative arthritis of the spine is not presumed to have been incurred during service, and continuity of symptomatology between any current arthritis of the back and service is not established. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1131, 1111, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1989 to March 1991. The Board most recently remanded this case to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in March 2019 for additional development. After substantial compliance with the Board of Veterans’ Appeals (Board) remand directives by the AOJ, the case has since been returned to the Board for appellate review. Entitlement to service connection for a low back disability The Veteran asserts that her back disability is related to her active duty service. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38C.F.R.§3.303(d). Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The second and third elements may also be satisfied under 38 C.F.R. § 3.303 (b), by the submission of (a) evidence that a chronic disease was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997), overruled on other grounds by Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). An award of service connection based solely on continuity of symptomatology only applies to the listed chronic diseases in 38 C.F.R. § 3.309 (a) which includes arthritis. See Walker, 708 F.3d at 1336-37. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 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 history of low back pain and has a current diagnosis of degenerative arthritis of the spine, that the preponderance of the evidence weighs against finding that the Veteran’s back condition is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records (STRs) show that the Veteran was diagnosed with low back pain in March 1989. There was no history of direct back trauma and the pain did not radiate into the Veteran’s legs. She was prescribed a topical cream to treat her lower back pain. Private treatment records show the Veteran was diagnosed with mild spondylosis of the thoracolumbar spine and a herniated lumbar disc in October 2006, decades after her separation from service. While the Veteran is competent to report having experienced symptoms of back pain since service, she is not competent to provide a diagnosis in this case or determine that her post-service back symptoms were manifestations of her in-service back pain. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). During a private physician consultation in October 2006, the Veteran stated that she had lower lumbar area midline pain for the last month. She denied any history of trauma to her back or overt exertion. In November 2006, the Veteran had back surgery to treat her herniated lumbar disc and alleviate her back pain. She reported intermittent back pain for the last several years, but noted increased back pain with lower extremity weakness prior to her surgery. During a January 2016 VA examination for PTSD, the Veteran reported having low back pain since military service. In January 2016, the Veteran underwent a VA examination for back conditions. The Veteran was diagnosed with degenerative disc disease with onset in 2006. She reported severe and constant back pain since active duty service. She denied any injuries to the back during active service. On examination, the VA examiner found objective evidence of back pain, yet opined that her pain was less likely than not related to her in-service report of back pain as a significant back condition was not documented in service and the back pain was believed to have resolved. There was no evidence that the Veteran had more than a single lumbar during active service. She was seen many times for other medical problems and did not mention back problems. An addendum opinion was needed as the VA examiner did not address the Veteran’s testimony that the in-service complaint of back pain had not resolved. In a letter received in August 2018, the Veteran stated that her back condition began during active duty service and that her back pain was noticeable during ruck marches. She reported back pain since active service. In March 2020, the Veteran underwent another VA examination for back conditions. Her claims file was reviewed by the VA examiner. The Veteran was diagnosed with degenerative arthritis of the spine. She reported a history of low back pain, which was worsening since active service. She underwent a discectomy in 2006 to treat worsening back pain. She reported four flare-ups a year with pain reaching a 9/10 intensity. Image studies of the thoracolumbar spine documented arthritis. The examiner opined that the lumbar spine degenerative arthritis status-post discectomy was less likely than not incurred in or caused by the claimed in-service event, injury, or illness. The examiner explained that she had a disc herniation in 2006. A 2015 emergency department note indicated that the Veteran had a fall. X-ray showed moderate L4-L5 disc space narrowing, which is common for people that underwent a discectomy. A 2016 emergency department note indicated that the Veteran had low back pain from lifting activities a day earlier. In 2019, the Veteran reported low back pain from lifting weights at the gym. The examiner opined that the Veteran’s complaints of back pain are not similar based on her treatment notes; therefore, her back pain is not a continuation of the same back pain she had on active service. Also, mild arthritis is usually due to normal aging. Acute disc herniation is more of an acute process and noted usually when lifting heavy things. Nevertheless, the examiner also found that there was no clear indication of low back pain during active service. However, the Veteran’s March 1989 complaint of low back pain clearly indicated that she had low back pain during active service; therefore, another opinion was needed. In September 2020, the Veteran underwent a VA contract examination. She was diagnosed with degenerative arthritis of the spine and invertebral disc syndrome (IVDS). The Veteran reported onset of back pain during active service. She reported continued back pain after separating from service, but did not seek medical attention until her microdiscectomy in 2006. She noted daily back pain and pressure. She reported flare-ups of back pain three to four times a year. Flare-ups were precipitated by lifting or bending. The VA examiner opined that the Veteran’s back condition was less likely than not related to her in-service injury. She explained that the STRs indicated an isolated visit for lumbar back pain without any radiculopathy or neurological symptoms that would indicate an acute lumbar disc injury during service. The herniated lumbar disc was diagnosed over 15 years after separation from active service. There is no reasonable or identifiable link between these episodes. Also, over a 15-year time span, the Veteran’s IVDS that required surgery, could be related to a combination of the aging process and micro/macro injuries. Further, there was no documentation of any in-service injury or trauma that would predispose the Veteran to early lumbar spine degenerative arthritis. She was diagnosed almost 30 years after discharge and there was no documentation of this condition within one year of discharge. It is very likely that the Veteran’s lumbar spine arthritis is due to the normal aging process. The Veteran’s report of recurrent back pain since active service is unlikely due to the isolated 1989 visit for low back pain. Her Chapter 8 medical examination was silent for recurrent back pain. Also, she had numerous diagnoses of lumbar back pain from new exercise programs, a fall on ice, and lifting objects. Therefore, the claimed lumbar back condition is less likely than not incurred in or caused by the in-service injury, event, or illness. The Board finds that the September 2020 examiner’s opinion is probative, because it is based on an accurate medical history, review of all relevant lay and medical evidence, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that there is no competent, credible, and probative opinion of record with supporting rationale that is contrary to the VA examiner’s opinion. The Board finds that the VA medical opinion is the most probative evidence of record. The Board has also considered entitlement to service connection on a presumptive basis. While there is current evidence of arthritic changes of the lumbar spine, these changes were not shown in service or within one year of discharge from service. Therefore, service connection cannot be presumed for the disability. Finally, while the Veteran has described recurrent low back pain since service, there is no competent evidence of a nexus between the Veteran’s complaint of back pain in service and her reported post-service symptomatology. As noted, the most recent VA examiner explained that the Veteran’s IVDS that required surgery could be related to a combination of the aging process and micro/macro injuries; that there was no documentation of any in-service injury or trauma that would predispose the Veteran to early lumbar spine degenerative arthritis; that she was diagnosed almost 30 years after discharge and there was no documentation of this condition within one year of discharge; that it is very likely that the Veteran’s lumbar spine arthritis is due to the normal aging process; and finally, that the Veteran’s report of recurrent back pain since active service is unlikely due to the isolated 1989 visit for low back pain as her Chapter 8 medical examination was silent for recurrent back pain and she had numerous diagnoses of lumbar back pain from new exercise programs, a fall on ice, and lifting objects. As such, the Board finds that the preponderance of the evidence weighs against finding that there is continuity of symptomatology related to the inservice complaint of back pain resulting in a current back disability. (Continued on the next page)   In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.