Citation Nr: 21063111 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 12-11 626A DATE: October 13, 2021 ORDER Entitlement to service connection for a back disability, for accrued benefits purposes, is denied. FINDING OF FACT The Veteran's back disability was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish etiological relationship between this disability and his service. CONCLUSION OF LAW For accrued benefits or substitution purposes, the criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from September 1974 to March 1975. The Veteran died in January 2020. VA substituted the Appellant, the Veteran's widow, in July 2020. This matter is on appeal from a March 2010 rating decision. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the record. In August 2017 and October 2018, this matter was remanded by the Board to the Agency of Original Jurisdiction to obtain additional VA treatment records which were subsequently added to the record in June 2019. The Board finds that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Claim Service connection may be granted 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 (a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Appellant contends that the Veteran had a back disability that was related to his service. Turning to the merits of the claim, the service treatment records (STRs) are void of findings, complaints, symptoms, or any diagnosis related to a back disability. Post-service, VA treatment records include a July 2008 MRI which indicated degenerative changes at L4/L5 with canal and foraminal stenosis. A December 2008 EMG indicated mild polyphasia which may have indicated a prior right L5 injury. On June 2009 VA examination the Veteran presented with a two-year history of back reported due to wear and tear. He denied any injury, but noted that he was pushed through a window in service. Unfortunately, the claims file was unavailable for the examiner to review. However, it was noted that the Veteran last worked in March 2009 prior to being let go due to back problems. After a thorough examination of the Veteran, the examiner diagnosed low back pain with sciatic like pain. VA treatment records include a March 2010 opinion from Dr. C.E. which notes that the Veteran was seen at the pain clinic for severe lower back pain secondary to degenerative joint disease of the lumbar spine. An August 2014 report indicates that he sought emergency room care for treatment of severe back pain. In June 2017, the Veteran testified that he injured his back while play fighting with another soldier during service which he fell through a window. He testified that he sustained bruising and a scar. The Veteran testified that he was told he would be alright and was placed on light duty. He testified that from his discharge in 1975 to 1978 he had back problems with no new intervening incidents other than a rear-end motor vehicle accident. He also testified that he sought treatment for his back in 1976. Additional VA treatment records obtained pursuant to the Board's remands indicate complaints of lumbago and additional complaints of low back pain. However, none of the medical records relate the Veteran's back disability to his service. The Board finds that the claim must be denied. There is no competent medical evidence to show that the Veteran had a back disability that was related to his service. Moreover, post-service, the record does not reflect or reference any history of back disability until over 33 years after discharge from active service. In addition, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). The Board finds in this case that the lack of evidence of a back disability during service coupled with the fact that a diagnosis of back disability was not made until over 33 years post-service, is sufficient to rebut a finding of service incurrence. In this case, the earliest post-service medical evidence of the Veteran's back disability was in July 2008 which is over 33 years after service. This long period without problems weighs against the claim. Moreover, the Board finds that the Veteran's statements and testimony relating his back disability to his service are not credible and are afforded no probative value. His contentions conflict with the absence of treatment evidence for over three decades after service. Finally, there is no competent medical evidence that the Veteran had any back disability that was related to his service. The Board has considered the Veteran and Appellant's contentions that the Veteran had a back disability that was related to his service. The Board has also closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and the claimed disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a back disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Given the foregoing, the Board finds that the medical evidence outweighs the contentions of the Veteran and the Appellant. In light of the above, the Board finds that the weight of the probative evidence is against a finding that the Veteran's back disability was related to his service. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.