Citation Nr: 21062742 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-17 039 DATE: October 12, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran's low back disability was not manifested in service; arthritis of the spine was not manifested within one year following the Veteran's separation from active duty; and his current back disability is not shown to be etiologically related to his service/injury therein. CONCLUSION OF LAW Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1993 to April 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 Department of Veterans Affairs (VA) rating decision. In September 2017, a videoconference hearing was held before the undersigned; a transcript is in the record. In January 2018, October 2019, and October 2020, this matter was remanded for additional development. [In October 2020, the VA (erroneously) sent a letter to the Veteran offering him the opportunity to have a virtual hearing. Subsequently, the VA discovered that the hearing was already held and informed him that his appeal would be adjudicated based on the September 2017 hearing transcript and other evidence of record. Therefore, there is no pending hearing request.] Entitlement to service connection for a low back disability is denied. Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran attributes his low back disability to a skiing accident in service. On July 1991 service entrance examination, the Veteran's spine was normal on clinical evaluation. In a contemporaneous report of medical history, he denied having, or ever having had, recurrent back pain, arthritis, rheumatism, or bursitis. A January 1995 STR notes the Veteran fell on his left side during a ski march (he complained of increased throbbing pain and discomfort); examination found no point tenderness, edema, or discoloration; he had good flexion and extension. On February 1997 service separation examination, his spine was normal on clinical evaluation. In a contemporaneous report of medical history, he denied having, or ever having had, recurrent back pain, arthritis, rheumatism, or bursitis. A January 1998 lumbar spine X-ray showed normal anatomical position and alignment of the vertebral bodies; intervertebral disc spaces were intact. On January 1998 VA examination, the Veteran reported that his back did not bother him (despite his work as a truck driver for waste management, as he could pick up to 25 pounds of waste/recycled materials and throw it into the truck without any problem). A March 2011 lumbar spine X-ray showed minimal degenerative changes (the reason for such study was an increasing low back pain in the past 6 months). On July 2011 VA examination, it was noted that the Veteran complained of back pain for one day in service (in January 1995); no other complaints of back pain were noted in his STRs and separation examination. The earliest postservice documentation of back pain was in March 2011. (His medical records (from 1995 till March 2011) were silent with respect to back pain.) The examiner stated there was no nexus between his complaint in service and his current back disability. He opined that his back disability was unrelated to service. An August 2014 lumbar spine X-ray showed minimal degenerative changes. A September 2014 private treatment record notes the Veteran's s back pain was sharp while laying down (and achy while walking). He took Naproxen for pain relief. An October 2014 lumbar spine X-ray showed no evidence of acute fracture or dislocation. An October 2014 lumbar spine MRI showed: 1) L4-L5 large posterior extruded disc protrusion measuring 1.5 x 1.7 cm (causing severe central canal stenosis and mild bilateral neural foraminal narrowing) and 2) L5-S1 small posterior disc protrusion impinging on the anterior thecal sac without significant canal or neural foraminal stenosis. On February 2016 Back Conditions Disability Benefits Questionnaire (DBQ), diagnoses of lumbosacral strain and degenerative arthritis of the spine were noted. The examiner stated, "medical literature did not support that sporadic, self-limited episodes of acute lumbar strain cause or result in lumbosacral spine degenerative joint disease (DJD) or degenerative disc disease (DDD)." She opined that the Veteran's current back disability is unrelated to service. At the September 2017 Board hearing, the undersigned explained that evidence (showing continuity of the Veteran's back disability) was necessary to substantiate a claim of service connection (for arthritis of the spine), and that the earliest postservice treatment record was from March 2011 (noting complaints of increasing low back pain for 6 months). (There were no medical records documenting his back disability from service separation to March 2011; the January 1998 VA examination found no back disability). The Veteran testified that he was previously incarcerated by the Palm Beach County Department of Corrections; the undersigned asked whether there were treatment records for his back disability at the correctional facility (which might possibly support his claim), and if so, to [submit them for the record]. An October 2017 X-ray showed minimal degenerative changes of the lower lumbar spine, causing minimal bilateral neural foraminal narrowing at L5-L5 and L5-S1. On May 2019 Back Conditions DBQ, diagnoses of lumbosacral strain, degenerative arthritis of the spine, and spinal stenosis were noted. Since the examiner was unable to locate STRs (documenting a low back injury), he opined that the Veteran's back disability is unrelated to service. He stated that the currently diagnosed back strain, lumbar radiculopathy, osteoarthritis and stenosis are the result of a back condition (not incurred during active duty). In a January 2020 Medical Opinion DBQ, the consulting provider indicated that an orthopedist should provide a medical opinion (per the October 2019 remand directives). (The DBQ does not include a nexus opinion.) In an April 2020 Medical Opinion DBQ, the consulting provider noted the Veteran fell from his skis in January 1995 and was seen at the service clinic the following day with no radicular symptoms (he had good flexion and extension; he also did not receive medication/treatment or have follow-up visits, indicating that his back injury was not significant). The consulting provider cited to the absence of (back pain complaints in his service separation examination) and (back disability on a January 1998 VA examination). It was noted that further record of back pain is shown until March 2011 (when increasing back pain over the previous 6 months was noted). He cited to the March 2011 X-ray (showing minimal degenerative changes of the lumbar spine) and October 2014 MRI (showing disc protrusions at L4-L5 were greater than at L5-S1, suggesting that they are less likely than not related to a service injury but more likely related to an injury subsequent to discharge). He stated that the facet arthropathy at L4-L5 and L5-S1 was age related degeneration, secondary to disc degeneration. An October 2020 Board remand sought viewable (not password protected) treatment records from the Palm Beach County Department of Corrections to be associated with the claims file. In a January 2021 Medical Opinion DBQ, the consulting provider stated there was no chronicity of care documented in the available records to show that the current lumbosacral strain and degenerative arthritis of the spine are a continuation or progression of a condition that stemmed from the Veteran's back complaint in January 1995. The provider noted that the available medical evidence was not sufficient to support a determination of the etiology of his back pain, lumbosacral strain and degenerative arthritis of the spine. He opined that it was less likely than not that the present diagnoses of lumbosacral strain and degenerative arthritis of the spine were incurred in service. In March 2021, VA received treatment records from Palm Beach County Department of Corrections (with a February 2018 Initial Health Assessment, noting low back pain complaints). In a June 2021 Medical Opinion DBQ (based on review of the record, including treatment records from Palm Beach County Department of Corrections), the consulting provider noted diagnoses of lumbosacral strain, degenerative disc disease (DDD), spinal stenosis, and radiculopathy. The provider noted back complaints in a January 1995 STR (with left testicular pain), and that STRs thereafter and postservice treatment records immediately after discharge are silent for back complaints. (No permanent residual or chronic disability subject to service connection was shown by his STRs or demonstrated by evidence from the period immediately following separation from service.) A January 1998 lumbar spine X-ray found no DDD, arthritis, or strain (and radiculopathy was not reported at that time). The provider explained that the lack of any finding on the January 1998 X-ray clearly ruled out that DDD/OA was incurred in service and the lack of any radiculopathy (combined with normal X-rays) also ruled out that spinal stenosis was incurred in service. He noted the Veteran's statements indicating he had back pain during the period from discharge till March 2011 (though there was no medical documentation of such complaints). He stated the strain (developed in March 2011) was likely a residual of the new DDD/OA and stenosis was a compensatory inflammatory process (rather than a chronic continuation of the isolated back complaint in service). He stated that it was obviously evident that these marked objective radiological findings developed in the two decades between 1998 and the findings later as a civilian, and the strain noted on recent examinations was due to the chronic degenerative changes and stenosis (and not due to the isolated incident in service). He opined that the current back disability was less likely than not incurred in or caused by the injury, event, or illness in service. He identified age-related degeneration, activities, lifestyle as a homeless person, and physically demanding postservice careers (airport groundskeeper, sanitation worker, dump truck driver) as alternate nonservice-related etiological factors for his development of back disability. At the outset, the Board finds that the June 2021 advisory medical opinion is substantially compliant with the Board's remand instructions and that the evidence is now adequately developed for adjudication purposes. It is not in dispute that the Veteran has lumbar spine DDD (shown on a March 2011 X-ray and clinically diagnosed in February 2016). However, the evidence of record does not show that lumbar spine DDD or any chronic back disability was manifested in service or that lumbar spine arthritis was manifested in the first year following the Veteran's separation from service. While a January 1995 STR notes throbbing back pain, it is shown to have been an acute episode resolved, and did not require follow-up. (Examination of the back examination at the time found no point tenderness, edema, or discoloration, and he had good flexion and extension.) A January 1998 X-ray (in the first postservice year) showed normal anatomical position/alignment of the vertebral bodies, and that intervertebral disc spaces were intact.) There is then a 14-year postservice interval during which there was no mention of a low back disability (and the Veteran was employed in physically demanding occupations).and it was not until March 2011 that an X-ray showed minimal degenerative changes of the spine. Accordingly, service connection for lumbar spine DDD on the basis that it became manifested as chronic in service, on a chronic disease presumptive basis (for arthritis under 38 U.S.C. § 1112), or based on continuity under 38 C.F.R. § 3.303(b), is not warranted. What remains for consideration is whether the Veteran's current low back disability is otherwise shown to be etiologically related to his service. That is a medical question beyond the scope of common knowledge and incapable of resolution by lay observation. It requires medical expertise. See Jandreau, 492 F.3d at 1377. The Veteran is a layperson; his own opinion that his current back disability is related to his service and an injury therein is not competent evidence in this matter. There are multiple medical opinions in the record, none supporting the claim, that are inadequate for rating purposes, for various reasons, but mostly because that were based on an incomplete or inadequately reviewed record. The only competent and fully adequate medical opinion in this matter is by the provider of the June 2021 advisory medical opinion, who concluded that it is less likely than not that the Veteran's back condition was incurred in/caused by his service. The opinion reflects familiarity with all the evidence of record (and takes into account the Veteran's statements), and the provider included a clear explanation of rationale, citing to supporting clinical data (that January 1995 back complaints were acute, and that later STRs and postservice treatment records are silent for back complaints, that a January 1998 X-ray did not show DDD, arthritis, or strain, and that a back disability was not shown during a 14-year postservice interval). The provider is a medical professional (competent to provide the opinion) and invoked medical principles in explaining that: 1) the low back complaints in service were acute, 2) that the absence of findings on a January 1998 X-ray after the Veterans' separation from service ruled out that current DDD/OA was incurred in (due to trauma in) service and the lack of any reports of radiculopathy (with normal X-rays on 1998) rules out that spinal stenosis was incurred in service, 3) that (based on the data) the current marked objective radiological findings developed in the two decades between 1998 and when the X-ray pathology was documented, and 4) and that the strain noted on recent examinations is due to chronic degenerative changes and stenosis (not to a January 1995 isolated incident in service). He identified age-related degeneration, activities, lifestyle as a homeless person, and physically demanding postservice careers (an airport groundskeeper, sanitation worker, dump truck driver) as alternate likely non-service-related etiologies for the current back disability. The opinion is probative evidence in this matter. Because the Veteran has not presented competent medical (opinion or treatise) evidence to the contrary, the Board finds it persuasive. Therefore, the preponderance of the evidence is against the Veteran's claim of service connection for a back disability. Consequently, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.