Citation Nr: 21061586 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-41 842 DATE: October 4, 2021 ORDER Service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a low back disability that is related to active military service or events therein. CONCLUSION OF LAW The criteria for establishing service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from August 1972 to August 1974. The Veteran and his spouse testified before the undersigned Veterans Law Judge during a September 2019 hearing and a transcript is of record. This matter is on appeal from a July 2015 rating decision. In a December 2019 decision, the Board remanded the issue being decided below to afford the Veteran a VA medical opinion. The Agency of Original Jurisdiction (AOJ) has done so. The August 2020 VA medical opinion is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it described his back symptoms in detail sufficient to allow the Board to make a fully informed determination. The examiner also provided a rationale for the etiology opinion. There was therefore substantial compliance with the remand directives with regard to this issue. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist with regard to the issue being decided below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Low Back Disability The Veteran contends that he has a low back disability that is etiologically related to his active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). During the Veteran's August 1972 entrance examination and his August 1974 separation examination, the examiner found his spine to be normal. At the time of the entrance examination, the Veteran denied any history of recurrent back pain. The record does not contain a report by the Veteran of his medical history at the time of the separation examination. In his April 2016 Notice of Disagreement (NOD), the Veteran reported that, during basic training, a drill instructor "sat on [his] back and jumped up and down trying to force [him] down in a sitting position" because the instructor did not think that his sitting position was low enough. He reported that he then felt "something strange happen in [his] lower back," a "squishing" sensation. He reported that he did not feel much pain over the next few days and did not report his symptoms "because of the stigma and harassment [he] had witnessed others go through." He reported that the pain eventually diminished but that it continued after service, which he did not report due to fear of harassment from officials at his railroad workplace. He reported that his back symptoms "finally ended [his] railroad job in 2003." In an April 2019 VA treatment record, the Veteran reported both his boot camp injury and a post-service injury while working at a railroad. During the September 2019 hearing, the Veteran provided a similar account of his in-service injury and his spouse testified that the Veteran had reported back symptoms to her during his active duty service. During the hearing, the undersigned Veterans Law Judge found the Veteran's report of a drill sergeant sitting on his back until he felt something go wrong to be a credible assertion. The Veteran was afforded a VA examination for back conditions in April 2019. The Veteran provided a similar report of his in-service injury and of his symptoms after that injury. He also reported that, in late 2002 or early 2003, he was thrown from the end of a rail car and hit a guard rail and pavement; after five months of therapy, in May 2003, he went back to work but had to retire after only one week. The clinician diagnosed moderately severe degenerative arthritis based on imaging from 2012 but did not provide an opinion as to its etiology. The Veteran was afforded a VA medical opinion as to the etiology of his low back disability in August 2020. The clinician opined that it was at least as likely as not that the Veteran's current low back disability was degenerative disc disease of the lumbar spine but not at least as likely as likely as not that that disability began during active duty service, was related to an incident of service, or began within one year after discharge from active service. With regard to continuity of symptoms, the clinician found the probative value of the Veteran's lay statements to be outweighed by a lack of "objective evidence," i.e., treatment records. This is not an adequate rationale, particularly when it does not address the Veteran's reported reasons for declining to seek treatment. However, the clinician also accepted the Veteran's account of his in-service injury as accurate for the purpose of the opinion and found, based on medical literature, that such an injury would have caused the Veteran's body to "instinctively stiffen in order to protect the specific area affected," likely resulting in a back strain but not injury to the bony structures or the spinal column itself. The clinician clarified that a back strain "can damage the tendons and muscles in the back resulting in pain, spasms and tenderness," but that this usually resolves over time, generally within several weeks. The clinician further opined that the injury in late 2002 or early 2003 was "a much higher impact blunt force trauma (per literature review) which placed him at significant risk for injury to the spine." The clinician added that, although other factors such as injury can play a role, "degenerative changes of the spine are primarily due to aging." The Veteran and his spouse are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, although the Veteran and his spouse are competent to report their observations of his subjective symptoms of back pain, they are not competent to provide an opinion as to the etiology of his back disability. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran and his spouse are not shown to possess any pertinent expertise or medical training that would make them competent to render an opinion on the etiology of any current back disability or to express an opinion about when his symptoms first warranted any medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide a medical diagnosis). Thus, the lay statements that the Veteran's low back pain had its onset during active duty service are not competent evidence. Rather, the medical findings and opinions of trained medical professionals, including the opinion that a low back injury of the type the Veteran reported would be unlikely to cause his current low back disability, warrant greater probative weight than the lay contentions in this case. In an August 2021 written brief presentation, the Veteran's representative reiterated the Veteran's belief that his back injury was incurred in service and that degeneration often results from "small injuries that may not cause pain at the time the injuries actually occur." In support of this, the representative provided an internet article titled, "Neck Pain Overview." This article is less probative than the opinion of the VA examiner. The article is about the cervical spine, and the Veteran's disability involves his lumbar spine. The April 2019 examiner diagnosed moderately severe degenerative arthritis at L4-L5 and L5-S1, based upon imaging studies. The article submitted by the Veteran's representative is about a different location on the spine than the Veteran's disability. The article states that a cause of neck pain can be "abnormal wear and tear. This process is called degeneration of the intervertebral disc. Degeneration often results from small injures that may not cause pain at the time the injuries actually occur. Over time, these injuries add up and the abnormal wear and tear can weaken the connective tissue that makes up the disc." The article then lists different types of neck pain, the types of imaging studies that can detect problems, and treatment options for neck pain. A medical article or treatise "...can provide important support when combined with an opinion of a medical professional." Sacks v. West, 11 Vet. App. 314, 317 (1998). The Veteran's representative did not submit the article in conjunction with a medical opinion. Additionally, this article contained only generic information. It did not apply medical principles regarding causation or etiology to the facts of this Veteran's case and instead spoke in general terms about "small injuries" and "abnormal wear and tear." There is no supporting medical evidence that the general principles cited in the articles relate to the specific situation of the Veteran and his in-service and post-service injuries. Mattern v. West, 12 Vet. App. 222, 228 (1999). Standing alone, this article simply addresses the types of neck pain and possible causes and treatments. It is less probative that the VA examiner's opinion. The VA examiner reviewed the claims file and had awareness of the Veteran's two different types of injuries, and provided an opinion specific to the Veteran. No treatment provider or examiner has found an etiological relationship between the Veteran's current low back disability and his active duty service. The August 2020 VA clinician's rationale that, even assuming the in-service injury occurred as the Veteran has described, an injury of that type would be unlikely to have caused his current low back disability and a later injury was a more likely cause is compelling. Furthermore, the Board has also considered whether service connection for a low back disability is warranted on a presumptive basis as a chronic disease. The Board does not need to determine whether continuity of symptoms was present, because the clinician's rationale against a nexus between the Veteran's current arthritis and his in-service injury renders it less likely than not that arthritis had its onset within one year of separation from active duty service. Because the preponderance of the evidence is thus against finding that the Veteran has a low back disability that is etiologically related to his active duty service, including as based on onset of arthritis within one year of separation from active duty, entitlement to service connection for a low back disability is denied. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.