Citation Nr: 21062792 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-44 261 DATE: October 12, 2021 ORDER Service connection for a low back condition is denied. FINDINGS OF FACT 1. The Veteran was presumed sound on service entrance as to any low back condition. 2. The Veteran's low back condition did not manifest to a compensable degree within one year of service separation. 3. The Veteran's low back condition did not originate during service and was not caused by any in-service event, injury, disease, or disorder. CONCLUSION OF LAW The criteria to establish service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from October 1970 to October 1974. This matter was previously before the Board of Veterans' Appeals (Board) in March 2019 when the issue of service connection for a low back condition was remanded for a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further development having been completed; the matter is once again before the Board. Service connection for a low back condition will be denied because the probative medical evidence of record does not show that the Veteran's low back condition is related to his service. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Regarding the competency of lay evidence, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed through the use of his senses, not medical expertise. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. §§ 5107(b). Service connection for a low back condition is denied. The Veteran contends that he injured his back in-service while playing basketball. For the following reasons, service connection is not warranted, and the claim is denied. During the September 1970 report of medical examination at service entrance, a clinical evaluation of the Veteran's spine and musculoskeletal system was normal. The September 1970 report of medical history shows that the Veteran specifically denied that he then had or ever had back trouble of any kind. During the June 1971 report of medical examination, a clinical evaluation of the Veteran's spine and musculoskeletal system was normal. An August 1972 physical examination does not show any back condition. During the October 1974 report of medical examination at service separation, a clinical evaluation of the Veteran's spine and musculoskeletal system was normal. A March 2012 private treatment record shows that the Veteran denied having back pain. A January 2013 private treatment record shows that the Veteran complained of immediate onset of acute low back pain when lifting a wheelchair. He did not report back pain but reported some soreness. A February 2013 private treatment record shows significant improvement in back pain with physical therapy. A September 2013 list of current problems includes lumbar disc disease, lumbar spondylosis with myelopathy, and low back pain. An October 2013 private treatment record shows that the Veteran denied having back pain. A January 2015 private treatment record shows that the Veteran denied having back pain. A February 2016 VA x-ray report shows evidence of possible congenital anomaly, diagnosed as grade I spondylolisthesis with bilateral spondylolyses between L5 and S1. The examiner noted that minimal anterior wedging of L4 body could represent an old compression fracture. A March 2016 VA x-ray report shows evidence of a possible old compression fracture and changes consistent with degenerative arthritis of the spine. Pursuant to the March 2019 Board remand, the Veteran was afforded a VA examination in November 2019. The examiner was asked to 1) elicit from the Veteran and the record all signs and symptoms of a low back condition during service and since separation from service, 2) identify all currently diagnosed low back disabilities since the date of his September 2015 claim, and 3) for any back disability that is determined to be "congenital," clarify whether it is a "congenital disease" or "congenital defect." The examiner was asked to provide the following opinions. One, if the Veteran has a congenital back disease, is it at least as likely as not that the congenital disease was aggravated by his service? The examiner was asked to address the Veteran's reports of a basketball injury in-service. Two, if the Veteran has a congenital back defect, was it subjected to a superimposed injury during service? Three, if any currently diagnosed back disability preexisted the Veteran's service, the examiner was asked to opine as to whether it clearly and unmistakably preexisted service, and if so, whether it clearly and unmistakably was not aggravated during service. Four, for any currently diagnosed back disability, opine as to whether it at least as likely as not had its onset during service, or is otherwise related to an event, injury, or disease incurred during active service. The examiner was asked to address the Veteran's lay assertions in providing the opinion. The Veteran reported that he injured his back in-service in 1973 while playing softball. He reported that he had a very sore back at the time. The examiner noted a diagnosis of lumbosacral strain with a date of diagnosis of 1973, the date provided by the Veteran. The examiner stated that the there is no pathology of a congenital back disease condition or of a preexisting back condition, and there are no medical records showing a diagnosis for a back condition or any related lumbosacral strain condition in-service. The examiner opined that the back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Although a February 2016 VA x-ray report shows evidence of possible congenital anomaly, after a thorough review of the record and clinical examination of the Veteran, the November 2019 VA examiner found no pathology of any congenital back disease. As the Veteran contends that he had a condition prior to service that was aggravated by his service, thereby causing his current condition, an analysis of the presumption of soundness as it relates to the Veterans back condition is necessary. The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Cotant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable (obvious or manifest) evidence that the veteran's disability was both preexisting and not aggravated (i.e. increased in severity beyond its natural progression) by service. If this burden is met, then the veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The September 1970 physical examination at service entrance indicates that the Veteran's spine was normal. No lumbar spine disorder was noted and there is no other indication that the Veteran had a disability at the time-of-service entrance. Additionally, the November 2019 VA examiner found no pathology of any preexisting back condition. Therefore, the presumption of soundness attaches. 38 U.S.C. § 1111; 38 C.F.R. § 304(b). VA must then determine if the presumption of soundness is rebutted. There is no clear and unmistakable evidence (obvious and manifest) that the Veteran's lumbar spine disorder both preexisted and was not aggravated by service. Instead, the June 1971 report of medical examination shows a normal spine and musculoskeletal system, and the August 1972 physical examination does not show any back condition. Therefore, there is no clear and unmistakable evidence that the Veteran's lumbar spine disorder preexisted service and the presumption of soundness has not been rebutted. Wagner, 307 F.3d at 1096. The claim is therefore one for service connection. Id. The Veteran believes that in-service lung x-rays should show a back injury. However, a review of the Veteran's service treatment records shows no indication of any back condition, to include available x-ray reports. The preponderance of the evidence is against the claim and the appeal will be denied. The service treatment records are silent for back symptoms. The October 1974 separation evaluation is absent any complaints or reports of back symptoms. While the Veteran believes that his current lumbar spine condition is related to his service, he is not competent to establish causation by injury or any other aspect of active service. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24. Vet. App. at 428. The record indicates that the Veteran did not complain of any chronic lumbar spine condition during service. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker, 10 Vet. App. at 73 (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). (CONTINUED ON THE NEXT PAGE.) Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that his lumbar spine condition is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. For these reasons, the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.