Citation Nr: 21004732 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-46 349 DATE: January 28, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDING OF FACT Currently diagnosed lumbar spine degenerative disc disease, degenerative joint disease, and strain are not etiologically related to the Veteran’s period of service, did not manifest to a compensable degree within one year of separation, and the more probative medical evidence of record does not show chronic back pain since separation. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 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 U.S. Army from August 1959 to August 1962. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from November 2016, December 2016, and June 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge and a transcript of the proceeding is of record. The Board finds that all requirements for hearings have been met. 38 C.F.R.§3.103(c)(2) (2019); Bryant v. Shinseki, 23 Vet. App. 488 (2010). This matter was remanded by the Board in November 2018 and September 2020. The Board finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, a December 2020 rating decision granted entitlement to service connection for gastroesophageal reflux disorder effective May 5, 2016. That decision represents a full grant as to that issue on appeal and the scope of the appeal is limited accordingly. The issue of entitlement to service connection for a skin disorder other than tinea pedis, tinea manum, and Poikiloderma of Civatte is on appeal separately and will be addressed at a later time. 1. Entitlement to service connection for a lumbar spine disorder is denied. The Veteran alleges that a chronic back condition began during service and has existed since that time and is related to an in-service back injury. See April 2018 hearing testimony. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2019). To establish a right to compensation for a present disability, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge 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) (2019). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The evidence demonstrates current diagnoses of degenerative disc disease, degenerative joint disease, and lumbar strain. See March 2020 and November 2020 VA examination and opinions. Second, the Board finds that there was an in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s service treatment records (STRs) show treatment for back ache in December 1960 and October 1961. The July 1962 report of medical examination at separation was silent for any back condition, nor was any back complaint noted on the July 1962 report of medical history. Overall, the STRs do show in-service back pain. Third, the Board finds that the evidence of record does not support a finding that the claimed lumbar spine disorders are related to active service. By way of background, the Veteran first filed a claim for service connection for a back condition in October 1962, reporting a history of injury in July 1960. He reported being treated for the condition in 1960 and 1961, but did not describe current treatment or symptoms. May 1978 VA x-rays of the lumbosacral spine did not show any abnormality, but the pertinent clinical history included a notation of chronic back pain. An October 1978 record documents back pain and myalgia. Private medical records show that the Veteran had a work-related back injury in October 1980 assessed as back strain. March and April 1983 private records document a history of lower back pain that began after the 1980 work injury and the assessment was probable S1 through L4 nerve root compression on the left side. X-rays at that time were unremarkable. February 1986 private records include a CT scan of the lumbar spine that showed minimal disc bulging at L3-4 and L5-S1, L2-3 flattened disc, and hypertrophic bone on the anterior superior margin of the 4th vertebrae. The assessment was degenerative joint disease of the lumbar spine. A December 1988 private record shows the Veteran’s initial back injury was 1980, and he reinjured the spine in 1983. In November 1991, Dr. DH wrote the Veteran had recurrent back problems related to the October 1980 injury with aggravations in October 1991 and November 1991. In October 1992, Dr. TR, the Veteran’s orthopedist, wrote the Veteran had back strain in service in 1962 that resulted in no residuals, and that the Veteran injured his back in October 1980 when he was pulling on cables. The Veteran underwent a VA examination in March 2020. At that time, the Veteran reported chronic back pain and left leg radicular symptoms since 1962. The Veteran also relayed a history of back injury after heavy lifting in 1966 and reported he was encouraged to proceed with surgery back in 1966. He also described back pain after a motor vehicle accident in 1968, and another injury in 1993 when he was moving furniture. The March 2020 examiner opined the Veteran’s lumbar spine degenerative joint and disc disease was not due to his period of service. The examiner explained the Veteran did not have structural breakage of the lumbar spine in service, which was a known risk factor for the development of lumbar spine degenerative joint and disc disease. The examiner also noted degenerative arthritis of the lumbar spine was not diagnosed until 1987. The Board remanded the matter to obtain an addendum opinion that addressed the evidence indicating chronic back pain since separation, including the lay testimony of chronic symptoms. As a result, an addendum opinion was obtained in November 2020. The examiner diagnosed lumbar degenerative joint disease, degenerative disc disease, and chronic lumbar strain. The examiner cited review of all evidence highlighted by the Board in the September 2020 remand. The examiner opined that the conditions were not related to the Veteran’s period of service. The examiner explained there were two types of back pain, acute and chronic. The examiner stated that acute back pain lasted days to weeks, and chronic back pain continued for 12 weeks or longer. The examiner went on to explain the STRs showed two acute back pain episodes and intermittent acute back pain since separation. The Veteran did not have chronic back pain until after a work-related back injury sustained in October 1980. The examiner supported their assertions with specific citations to the medical record. Considering the lay testimony of chronic back pain since service, the examiner explained that the medical records with 6 different encounters provided a more consistent account that chronic back pain did not begin until October 1980. Here, the preponderance of the evidence shows the currently diagnosed lumbar spine disorders are not due to the Veteran’s period of service. The Board finds the November 2020 medical opinion to be the most probative in this regard, as the examiner reviewed all relevant evidence and supported their conclusion with a well-reasoned medical rationale. The November 2020 examiner’s conclusion is consistent with Dr. TR’s assessment that the in-service strain resolved without residuals, and the lack of any back complaints or diagnoses at separation from service. The Veteran has relayed symptoms of chronic back pain since separation, but the Board finds the 2020 examiner’s conclusion to be more probative. The 2020 examiner adequately explained the difference between recurrent, acute back pain and chronic back pain. Further, the medical evidence shows the Veteran had several back injuries following separation from service to account for the recurrent, acute back pain episodes. Overall, the 2020 examiner’s medical conclusions are afforded greater weight. Accordingly, service connection for lumbar spine degenerative joint disease, degenerative disc disease, and lumbar strain is denied on a direct basis. Further, service connection for degenerative arthritis of the lumbar spine may not be presumed. The medical evidence shows that arthritis of the spine was not present within a year of separation from service based on negative x-rays in 1978. Also, as discussed, the more probative medical evidence does not show chronic back symptoms since an in-service onset. Thus, the criteria for presumptive service connection for a chronic disease are not met. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.