Citation Nr: 21061751 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-45 606 DATE: October 5, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT A low back disability was not shown as chronic in service; arthritis was not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the current low back disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 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 from September 1979 to January 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a low back disability. The Veteran filed a notice of disagreement (NOD) in August 2017 and a statement of the case (SOC) was issued in August 2017. He perfected a timely appeal in September 2017. In June 2020, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In a March 2021 Board decision, the claim was remanded for further evidentiary development. Pursuant to the Board remand instructions, the agency of original jurisdiction (AOJ) sent the Veteran a letter in March 2021 requesting that he complete a VA Form 21-4142 (Authorization to Disclose Information to the Department of Veterans Affairs (VA)) in order for the AOJ to obtain the authorization to request treatment records from his private medical sources. However, the Veteran did not respond to the letter. In addition, outstanding VA treatment records were obtained and the Veteran was afforded VA examinations in May 2021 and June 2021 with a nexus opinion. A review of the record therefore reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in August 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for a low back disability. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, 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). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In this matter, the Veteran asserts entitlement to service connection for a low back disability, which he contends was incurred during his active military service. Specifically, he indicated that he hurt his back while carrying a tent by himself. See the Veteran's NOD dated August 2017. With respect to current diagnosis, VA treatment records dated in June 2017 document the Veteran's complaints of low back pain. Decreased flexion of the lumbar spine was noted in July 2017. VA treatment records dated in August 2017 indicated that X-ray of the low back showed "moderate L4-5 degenerative changes." Magnetic resonance imaging (MRI) conducted in December 2019 revealed multilevel spondylosis with severe canal stenosis. As to in-service injury, the Veteran's service treatment records (STRs) do not document any complaints of or treatment for back pain. However, he is competent to describe his injury and report observable symptoms such as low back pain. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). At the June 2020 Board hearing, the Veteran offered testimony concerning low back pain symptomatology on and off dating from his active duty service. With respect to the third element necessary for an award of service connection, the Veteran was afforded a VA examination in May 2021 at which time the examiner documented diagnoses of degenerative disc disease (DDD) of the thoracolumbar spine, as well as a thoracolumbar strain. A second VA examination was conducted in June 2021, which documented a diagnosis of degenerative arthritis of the thoracolumbar spine. The VA examiner interviewed and examined the Veteran and reviewed the lay and medical evidence of record including the Veteran's service treatment records; the post-service VA treatment records documenting the Veteran's report of low back pain in June 2017 and an August 2017 X-ray report showing moderate L4-5 degenerative changes; the Veteran's August 2017 report that he injured his back during active duty when carrying a tent by himself; and the Veteran's June 2020 hearing testimony regarding his symptoms. The June 2021 VA examiner concluded that the Veteran's diagnosed disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained, STR's are silent for any back complaints or findings. The first mention of lower back pain in the available records is from 2017 in which the Veteran states he has had back pain for a few years and it was getting worse with age. Imaging does show degenerative changes on x-ray in August 2017 which is 35 years after the Veteran separated from the Army. While the Veteran does contend he hurt his back in the Army, the lack of records showing treatment at that time or for 35 years after the incident leads to the opinion that if there was an injury to the Veteran's lower back while he was in the Army, it was not severe enough to lead to any residuals and that the degenerative changes found on x-ray occurred in the 35 years after the Veteran separated from the Army. The Veteran's current back findings do not align with how the currently diagnosed disability is known to develop. If this was due to an injury while on active duty, the Veteran would have been seen more frequently for complaints/treatment that he has in the 35 plus years since he separated from the military. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, in the June 2021 VA medical opinion, the examiner found no nexus between the Veteran's military service and his current low back disability. The examiner's conclusions, as expressed in the June 2021 VA examination report and medical opinion, were based on a review of the record including the lay statements and medical evidence. The examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the findings of the June 2021 VA examiner. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Given the explanation provided by the June 2021 VA examiner and the fact that the examiner considered the record on appeal and the June 2020 Board remand instructions, the Board finds that the VA medical opinion provides an adequate basis for consideration of whether the Veteran's claimed low back disability is medically related to his military service. Accordingly, the Board finds that the medical evidence demonstrating the absence of nexus between the currently diagnosed low back disability and the Veteran's active duty service outweighs the evidence suggestive of a nexus. The Board has carefully considered the contentions of the Veteran that his low back disability is due to his military service. However, the Board herein finds that the Veteran's assertions of nexus concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Board has also considered the evidence of record showing that the Veteran has been diagnosed as having arthritis, an enumerated disease under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, arthritis was not diagnosed beyond legitimate question in service or manifest to a compensable degree within one year after separation. Significantly, the record does not contain any probative evidence of arthritis in the first post-service year or, indeed, for many years thereafter. The Board has considered the Veteran's statements in support of his claim that he sustained low back trauma in service and developed back pain thereafter. The record contains some inconsistencies regarding the date of onset of his low back symptoms. Questions of credibility notwithstanding, the Board finds that the most probative evidence of record does not attribute the reported continuous symptoms in service and thereafter to arthritis. As set forth above, the June 2021 VA examiner considered the Veteran's reported symptoms but determined that the Veteran's current back findings do not align with how his diagnosed disability is known to develop. Although the Veteran is competent to report having experienced back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis. That issue is medically complex, as it requires clinical expertise such as knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). (Continued on the next page) The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the record, including the service treatment records, the post-service medical evidence, June 2021 VA medical opinion, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the preponderance of the evidence is against the claim of entitlement to service connection for a low back disability. Thus, the benefit-of-the-doubt rule does not avail the Veteran. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.