Citation Nr: 21004176 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-06 435 DATE: January 26, 2021 ORDER Service connection for a low back disability is denied.  FINDING OF FACT The Veteran’s low back disability did not have its onset during service and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from January 1977 to March 1977. The matter is on appeal from a September 2015 rating decision. In May 2019, the Veteran testified at a Board hearing. Also in May 2019, the Board remanded the Veteran’s case for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for a low back disability. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis The question for the Board is whether the Veteran has a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. Pursuant to the Board’s May 2019 remand, the Veteran was afforded a VA examination in July 2020. The VA examiner reviewed the Veteran’s case and confirmed a diagnosis of residual of microdiscectomy. He previously had disc herniation. Thus, the current disability element of the claim is established. During his May 2019 hearing the Veteran reported sustaining a lower back injury about six weeks after joining the service while unloading lockers from a truck. He explained his truck was hit by another truck causing him to fly over one of his buddies and land on a locker. The Veteran indicated he was treated at the infirmary. According to the Veteran, when he was released from the infirmary, he called a cab and went to Cranston General Hospital where he was admitted. He said he had a herniated disc and he had surgery. The Veteran said he was absent without leave (AWOL) for roughly thirty days before he returned to basic training at Fort Dix. The Veteran said when he returned to Fort Dix he explained why he had been AWOL, he had a hearing, and he received an honorable discharge. In an April 2016 hearing before a Decision Review Officer, the Veteran provided greater detail of the incident. He explained that after the infirmary gave him a pain reliever and three days bed rest his drill instructor accused him of faking his injury. The Veteran went AWOL. When he returned from being AWOL, the Veteran shared he went before a colonel and told the colonel he went to Cranston General Hospital, he did not have any paperwork of his hospital stay, and he was also arrested in Rhode Island. The Veteran said the colonel told him that he was receiving an honorable discharge as untrainable, he needed to straighten out the court case pending in Rhode Island, and, if he wanted, he could reenlist. In a November 2013 evaluation for Rhode Island Disability Determination, the Veteran told the examiner he was discharged from the service as untrainable after he had a fight with his drill sergeant. He said he received an honorable discharge and then went straight to prison. The Veteran did not mention his injury or visit to the hospital. The record in this matter does not include any records from the Veteran’s 1977 stay at Cranston General Hospital. The facility closed in 1993. The Veteran did not have copies of his records and the RO was unable to secure any records from Cranston General Hospital. His service records have no evidence of the Veteran’s accident or his stay in the infirmary. The record does include the Veteran’s discharge from service, which indicates he served from January 1977 to March 1977 with ten days of excess leave in March and another seven days lost under 10 U.S.C § 972, a provision which requires service members to make up time lost due to desertion, being AWOL, being confined in connection with a trial, or being incapacitated by drugs, alcohol, or injury resulting from misconduct. The record also contains the Veteran’s September 1976 entrance examination, which notes a scar on the Veteran’s low back from a fall from a ladder in June 1969. Given this evidence, and when resolving reasonable doubt in the Veteran’s favor, the second element of an in-service injury is established. Also relevant, in 2005, the Veteran slipped on the ice. The record includes medical documentation of the Veteran’s extreme pain following the fall and his diagnosis of a free fragment-type disc herniation. The Veteran received narcotics for the pain and underwent a microdiscectomy at Fatima Hospital to relieve his pain. Additionally, the Veteran suffered neck and back pain due to a motor vehicle accident in June 2017 and suffered another fall in November 2019 resulting in neck pain. The July 2020 VA examiner examined the Veteran and reviewed the record, including the Veteran’s report of his fall in service and the records of the Veteran’s post-service injuries and surgery. The VA examiner noted that there are no records available that directly relate the Veteran’s back condition to any service-related injury or illness. The VA medical examiner diagnosed the Veteran with residual of a microdiscectomy and concluded it is less likely than not that the Veteran’s current condition relates to an accident during service. The July 2020 VA examiner’s opinion is persuasive because it is based on an examination of the Veteran and a review of the Veteran’s medical history. The VA examiner considered the Veteran’s contention, the claims file, and clinical medical evidence before providing a negative opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the VA examiner’s opinion and the medical documentation of the Veteran’s post-service 2005 fall and treatment to be more probative evidence as to the nexus element of Veteran’s claim. The Veteran believes his fall in basic training caused or contributed to his current diagnosis. The Veteran is competent to report his symptoms; however, lay persons are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative evidentiary weight to the VA examiner’s opinion. In conclusion, the preponderance of the evidence is against the claim and particularly the nexus element. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a low back disability is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.L. Thomas 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.