Citation Nr: 21004321 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-00 155A DATE: January 26, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s low back disability had an onset in service. Any arthritis was first shown years after service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1976 to March 1979. The Board of Veterans’ Appeals (Board) remanded this matter for further evidentiary development in October 2018. The case has returned to the Board for appellate review. Entitlement to service connection for a low back disability Generally, service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may 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. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word “chronic.” Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303 (b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the “chronic” diseases specifically enumerated in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. The VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks entitlement to service connection for a low back disorder. The Veteran contends that his low back pain started in 1979 and is a result of carrying heavy gear as an Infantryman during his military service. Regarding a current low back disability, the Veteran has been diagnosed with degenerative arthritis of the spine, which was confirmed by the September 2019 VA examination. Thus, there is evidence of a current disability. Regarding an in-service occurrence, the Veteran’s service treatment records (STRs) contain an October 1977 complaint of low back pain. The STRs are otherwise silent for complaints of or treatment for a back disability, to include a normal back evaluation in December 1978. Additionally, the Veteran’s DD 214 shows the Veteran’s military occupational specialty was an Infantryman. As for a nexus, the Veteran’s post-service VA medical records are silent for complaints of or treatment for a back disability until an April 2011 x-ray and diagnosis of degenerative disease of the lumbar spine. The May 2014 VA examiner opined that the Veteran’s back disability is not at least as likely caused by injury or event during his military service. The examiner provided the rationale that the October 1977 STR diagnosis was contusion, but no injury episode was described, and no further back entries are seen in the STRs. The examiner also noted that the December 1978 examination was unremarkable for active back issues. The Board found the May 2014 examination to be somewhat inadequate for rating purposes, so the Board did not rely on this examination when making this present decision, but this examination provides the Board with a general notion of the Veteran’s back disability symptoms throughout the course of this appeal. As previously mentioned, the Board remanded this matter in October 2018, finding an additional examination warranted as the May 2014 examiner did not address whether the Veteran’s back disability was related to the heavy gear he reported carrying and did not address the Veteran’s report of pain since service. Pursuant to the Board remand, the Veteran was afforded a VA examination in September 2019. The September 2019 examiner confirmed the Veteran’s April 2011 diagnosis of degenerative arthritis of the spine and March 2012 diagnosis of thoracic spine compression fracture. The examiner opined that it is less likely than not the Veteran’s current back disability was incurred while on active duty. The examiner provided the rationale that the STRs are notable for one episode of acute back pain, STRs are silent to support that this acute condition became chronic, and post-service records are silent for any evidence to support continuity of in-service back symptoms. The September 2019 examiner further provided that the thoracic spine compression fractures are due to acute trauma that occurred in March 2012. The examiner noted that the muscle contusion noted in service does not cause degenerative arthritis of the spine to develop because a back strain implies there was no disruption to the articular surface of the joint at the time of injury, and the STRs are silent for any injury of such severity that would cause disruption of the joints of the spine, the back disability is most likely due to natural aging process. The Board finds this opinion well-reasoned and thoroughly considered the Veteran’s complete medical history and is accordingly afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The Board notes that there is no opinion in the record to the contrary. The Board notes that lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Veteran contends that he believes his current back disability to be due to his military service. The Board acknowledges the Veteran’s lay statements regarding the nature and etiology of his low back disability. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain, wincing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology alone cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board assigns little probative value to these lay assertions of the etiology of his back disability. The Veteran’s low back disability is first shown years after service, and there is no clinical evidence that it is the type of disability that would be due to his duties in service years earlier. The September 2019 examiner provided a comprehensive opinion after review of all the pertinent evidence. Reference was made to pertinent studies, statements, and clinical history. This is, in the Board’s view, persuasive, especially with consideration given to the entire record. Accordingly, based on the evidence discussed above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for a low back disability. The benefit of the doubt rule does not apply, and the appeal must be denied. See 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.