Citation Nr: 21004378 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-32 727 DATE: January 27, 2021 ORDER Service connection for a low back disability to include degenerative disc disease (DDD), intervertebral disc syndrome (IVDS), spondylosis, and degenerative arthritis, is denied. FINDING OF FACT The weight of the evidence is against a finding that the claimed low back disability, to include DDD, IVDS, spondylosis, and degenerative arthritis, began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability, to include DDD, IVDS, spondylosis and degenerative arthritis, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1975 to January 1978. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for degenerative arthritis of the lumbar spine. The Veteran’s notice of disagreement (NOD) was received in October 2012. The RO issued a statement of the case (SOC) in July 2015. The Veteran’s VA Form 9, substantive appeal to the Board, was received in August 2015 at which time the Veteran requested a hearing. The hearing request was withdrawn in November 2018. In December 2018 and May 2020, the Board remanded the case to the RO for further development and adjudicative action. It has now returned to the Board. Entitlement to service connection for a low back disability to include DDD, IVDS, spondylosis, and degenerative arthritis The Veteran contends that his current low back disability, to include DDD, IVDS, spondylosis and degenerative arthritis, was caused by the following in service events: being trampled by a horse (while on leave) in September 1976, getting injured while lifting bricks in September 1977, and (while in the airborne unit) as a result of several parachute jumps, some of which were directly onto pavement. In this regard, the Veteran contends that his low back injury “became worse as time progressed.” See March 2011 Statement in Support of Claim; August 2015 VA Form 9. Service connection may be granted when the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. A layperson is competent to report on the onset and continuity of his current symptomatology. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). “Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In order the establish degenerative arthritis for VA purposes, the diagnosis must be supported by x-ray documentation. 38 C.F.R. § 4.71(a), Diagnostic Code 5003. A review of the Veteran’s service treatment records (STRs) shows that in September 1976, while on leave, the Veteran was trampled by a horse resulting in injury to his left thigh muscles and a resolving hematoma. As a result, the Veteran was placed on limited military duty prohibited from any physical training, parachute jumping, standing, walking or marching. However, the STRs do not show that the Veteran reported back pain in conjunction with this injury. One year later, in September 1977 the Veteran reported low back pain due to lifting bricks. An x-ray was taken on September 19, 1977 and revealed no significant abnormalities noted. However, the next day, the Veteran presented with pain in his right lower pack, and reported that he could not walk, sleep, or sit without pain. The impression by the examiner was acute lumbar strain. On September 20, 1977, the Veteran was prescribed pain medication and bedrest for 72 hours; and, he was to return in three days. Three days later, he again presented with back pain. He was somewhat better, but not markedly improved. He was prescribed bedrest for three additional days. The next follow up was one week after the initial injury, on September 26, 1977, and the Veteran was better, but still had pain. He reported that when he gets up and moves around he is somewhat more symptomatic. An evaluation at the physical therapy clinic revealed limited and painful flexion and limited left side bending. Sensory, motor, and strength examinations were all within normal limits. On September 29, 1977, the Veteran reported minimal relief of initial symptoms with residual soreness. In November 1977, the Veteran completed his exit exam from service. Almost two months after his acute lumbar sprain in September 1977, the Veteran reported no pain and no ailment at the time of discharge; and, the discharge examination is negative for any low back complaints or findings. In addition, the personnel records show that the Veteran was evaluated on his performance as a mail clerk in November 1977, and there was no indication on the evaluation report that the Veteran was unable to satisfactorily perform his job. After his time in service, the Veteran had a thirty-year career in the trucking and shipping industry wherein he spent the late 1980s and early 1990s inside performing office work requiring prolonged periods of sitting. In 2004, the Veteran was involved in a motor vehicle accident resulting in the death of the other driver. As a result, the Veteran suffered broken ribs and back pain so severe that he could no longer work. See February 2012 DBQ. By 2006, the Veteran began receiving pain management from a private treatment center. Treatment at the center consisted of periodic injections into the Veteran’s spine in addition to pain medication. See 2006-2019 Center for Spine & Pain Management (CSPM). A review of the record shows that the Veteran has a current diagnosis of degenerative disc disease (DDD) of the lumbar spine, and lumbar spondylosis. See April 2019 VA examination report; July 2008 CSPM operative report. Private records show doctors at CSPM diagnosed the Veteran with lumbar spondylosis, and that finding is supported by their February 2018 MRI report which showed multi levels of DDD, disc bulge and stenosis. Therefore, with respect to the claim for service connection for a low back disability to include DDD of the lumbar spine, and lumbar spondylosis, the current disability requirement is met. The question for the Board is whether the Veteran’s current back disability is related to the documented in-service lumbar strain, or to some other in-service injury or disease. Treating the Veteran’s lumbar spondylosis as a form of arthritis, a chronic disease under 38 C.F.R. § 3.309(a), there is no competent objective evidence of arthritis within the first post-service year. Private treatment records show the Veteran was diagnosed with lumbar spondylosis in July 2008, over 20 years after his separation from service and two decades outside of the applicable presumptive period. Therefore, in order for the presumption to apply, there must be evidence in the record to support a theory of continuous symptomology. 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Records from the private facility treating the Veteran’s back pain are absent any mention of his military service, make no reference to an in-service injury, and offer no medical opinion as to the cause of the Veteran’s current low back disability. See 2006-2019 Center for Spine & Pain Management. VA records show the Veteran was provided three examinations. According to the initial September 2011 VA examination, an x-ray of the lumbar spine revealed minimal osteophyte formation, but vertebral bodies had normal height, disc spaces were well maintained. The examiner observed muscle spasms and radiating pain to the legs. The examiner diagnosed the Veteran with “Lumbar Strain with Degenerative Changes.” There was no opinion as to whether the Veteran’s lumbar spine disability was related to service. At the Veteran’s September 2011 VA examination, the Veteran asserted that he has had back pain since service. However, the weight of the most probative evidence of record is against finding that the Veteran’s current DDD and spondylosis is related to any in-service low back injury. 38 U.S.C. §§ 1110, 5107 (b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As noted above, the discharge examination did not reveal any complaints or findings regarding back pain. Another x-ray of the lumbar spine was obtained in February 2012. The x-ray report indicates that pedicles of the lumbar spine were well maintained, and there was no acute wedge compression deformity or bony destructive lesion seen. There was a faint 2 mm calcification overlying the lower pole of the right kidney. The impression was no acute fractures seen. A February 2012 VA examiner noted that the Veteran was diagnosed with arthritis in 2011; however, the examiner specifically indicated that arthritis was not documented on x-ray. The examiner further noted that it is possible to have “minor findings” on x-rays, particularly in early disease states, that are not visible on comparison films. While the examiner checked the “yes” box corresponding to whether the Veteran has IVDS, the examiner did not refer to any objective MRI or other radiographic evidence to support that diagnosis. The Veteran was provided a third VA Exam in April 2019. At that time, the examiner noted a thoracic vertebral fracture and diagnosed the Veteran with DDD of the lumbar spine, which was confirmed in a subsequent opinion by the same examiner. While the Veteran believes his DDD and spondylosis are related to an in-service injury, or event, or illness including being trampled by a horse in September 1976 and an acute back sprain from lifting bricks in September 1977, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In other words, while the Veteran is competent to report back pain since service as this is an observable symptom capable of lay observation, he is not competent to provide an opinion linking his current back pain to the back pain he felt in service. Consequently, the Board gives more probative weight to the competent medical evidence. The record includes two medical opinions from two different VA medical examiners. In the February 2012 examination, the examiner opined that the Veteran’s low back disability is less likely than not caused by an in-service injury, event, or illness. The examiner noted that there was clearly an acute strain noted from September 1977; however, the examiner pointed out, “There is no indication that the condition did not resolve prior to discharge,” and referenced the November 1977 discharge examination which did not indicate any back complaints. The examiner further noted that the Veteran’s x-ray showed no degenerative changes to the lumbar spine and that the Veteran worked in the trucking industry, a job that requires “heavy lifting and long periods of sitting without apparent limitations.” The examiner opined, based on a review of the STRs, that the Veteran’s lifting injury in 1977 was most likely a sprained back. The examiner also noted that the Veteran nevertheless continued his active duty until 1978. The examiner further opined that the Veteran’s current DDD of the lumbar spine is likely secondary to natural ongoing process of aging, and less likely secondary to injury in the 1970’s without any bony or ligament injury. After further review of the Veteran’s entire file, the same 2019 examiner supplemented her medical opinion. She reasoned that the Veteran’s acute back sprain of 1977 “likely resolved since [his] discharge exam in 1977 had no mention of his back problems” and the Veteran continued his service until 1978. The examiner further noted that the Veteran “worked in trucking and shipping for over 20 years so it is less likely that there was any anatomical damage to the bones or ligaments.” In consideration of the Veteran’s history of injuries, including the 2004 motor vehicle accident, the examiner concluded that “it is less likely that the Veteran’s current DDD L-Spine is secondary to or incurred during [active duty]” and reaffirmed her April 2019 opinion that it is likely to be secondary to natural process of wear and tear that comes with aging. See May 2020 VA Exam. Even if we presume the Veteran has continuous pain since service, the fact that there was an intervening motor vehicle accident which resulted in routine shots to his spine for pain management, coupled with the negative nexus opinions weighs heavily against the claim. Therefore, a relationship between the Veteran’s in-service back injuries and current low back disability has not been established. Given that the examiner performed a physical assessment of the Veteran, reviewed the service records and outpatient treatment records, as well as the remand, and, provided a complete rationale based on sound medical principles, the opinion is highly probative. While the examiner did not specifically address the Veteran’s reports of pain since service, the examiner was aware of those reports given that they were noted in the Board remand and in the claims file, which was provided to the examiner for review in conjunction with the examination. There is no medical opinion to the contrary. In this regard, although the Veteran is competent to report his observable symptoms including pain; and, sincerely believes that his low back disability is the result of his acute back sprain injury during service, his opinion as to causation is not competent. The Veteran has not been shown to possess the requisite training or credentials necessary to render a competent opinion as to causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issue in this case is medically complex and is not capable of lay observation. (Continued on the next page)   The competent medical evidence in this case outweighs the Veteran’s lay reports of low back pain since service. Accordingly, the preponderance of the evidence is against this claim, and the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, 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.