Citation Nr: 21004180 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-50 811 DATE: January 26, 2021 ORDER Entitlement to service connection for a back disability for purposes of accrued benefits is denied. FINDING OF FACT The preponderance of the evidence was against finding that the Veteran’s back disability began during active service or was otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a back disability for purposes of accrued benefits 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 in the U.S. Army from May 1969 to December 1971, to include service in the Republic of Vietnam. Unfortunately, the Veteran passed away in December 2012. His surviving spouse has been accepted as the substitute party. The Veteran’s spouse testified before the undersigned Veterans Law Judge at a Board hearing in September 2018. The transcript is of record. In March 2019, the Board remanded the above issue to obtain a VA opinion, which was obtained in September 2020. Therefore, the Board was satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: “(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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as arthritis is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a back disability for purposes of accrued benefits is denied. The Veteran contended that he had a back condition that was related to his military service. The question for the Board was whether the Veteran had a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a current diagnosis of a back disability, and evidence shows that the Veteran had back pain in service, the preponderance of the evidence weighs against finding that the Veteran’s back disability began during service or was otherwise related to an in-service injury, event, or disease. First, with respect to a diagnosis, the September 2020 VA examiner noted that the Veteran had a back disability, to include diagnoses of thoracic spine degenerative disc disease, lumbar spine degenerative disc disease status post fusion, and cervical spine degenerative disc disease status post fusion. Therefore, the first element of service connection, a diagnosis, had been met. Second, with respect to an in-service incurrence, the Veteran’s service treatment records indicate a report of back pain in November 1971. As there was a record of back pain in service, the Board finds that the second element of service connection, an in-service incurrence, had been met. Therefore, the only remaining issue was whether a nexus can be established. With respect to a nexus, the September 2020 VA examiner opined that the Veteran’s thoracic spine degenerative disc disease status post fusion and lumbar spine degenerative disc disease status post fusion were less likely than not due to lumbar spine complaints in service. The examiner reasoned that, although the Veteran’s service treatment records show a complaint of back pain in service in November 1971, the Veteran’s imaging was negative for any disc herniation or protrusion. There were no further follow up visits or complaints suggesting the condition persisted from 1971 to the initial private treatment records noted in 2007. The examiner reasoned that medical evidence did not indicate that the Veteran’s current lumbar spine and thoracic spine conditions were related to an injury that occurred more than 25 years prior. The severity of the Veteran’s degeneration was noted to be consistent with age-related changes and unlikely related to an injury that occurred more than 25 years ago. Additionally, the examiner noted that the Veteran had a significant history of obesity, which was well known to cause increased strain and pressure on the thoracic and lumbar spine, which can explain the Veteran’s thoracic and lumbar spine problems after service. With respect to the Veteran’s cervical spine disability, the September 2020 VA examiner also concluded that the Veteran had a diagnosis of cervical spine degenerative disc disease status post fusion that was less likely than not due to a cervical spine condition that began in service or was otherwise related to service. The examiner reasoned that a review of the Veteran’s service treatment records shows no history of significant neck injury that had persisted since the Veteran left service in 1971. There was no history of severe neck injury that can explain the Veteran’s cervical spine condition. Additionally, the examiner opined that the Veteran’s cervical spine degenerative disc disease was more consistent with age-related degenerative changes that occurred gradually over time. In an October 2020 addendum opinion, the same VA examiner reasoned that, although the Veteran was seen for back pain in April 1985, this back pain noted on this April 1985 incident was not related to the back pain experienced in 1971, and was associated with back pain from a motor vehicle accident sustained in 1985, which was 14 years after leaving service. Subsequently, the Veteran was seen for back pain in 1987/1988 and noted minimal narrowing of the L4-5 intervertebral disc space, which was typical of age associated degenerative changes that occurs over time rather than from a complaint of back pain in 1971. The examiner noted that the Veteran was then seen regularly for chronic back in the 2000s prior to 2007. The examiner noted that the Veteran’s clinical history shows that the Veteran’s follow up for chronic back pain was after the motor vehicle accident on April 1985 and was not associated with the complaint of back pain in 1971. According to the medical records, the Veteran’s back pain was further worsened over time by his underlying morbid obesity, which was a known risk factor or aggravating factor for chronic back pain. Additionally, the examiner noted that the Veteran initially complained of thoracic pain in 1971 with radiation to the arms, which was not anatomically related to the current lumbar spine degenerative disc disease. Taken together, the Board finds the examiner’s opinions in September 2020 and October 2020 probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran was competent to report having experienced symptoms of back pain since service, he was not competent to determine that these symptoms were manifestations of his current back or neck disability. These issues are medically complex and require knowledge or interpretation of complicated diagnostic medical testing and medical knowledge that the Veteran did not possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board lends more probative weight to the September 2020 and October 2020 VA opinions. Based on the above, lacking a nexus, entitlement to service connection for a back disability for purposes of accrued benefits is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, Associate Counsel The Board’s decision in this case was binding only with respect to the instant matter decided. This decision was not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.