Citation Nr: 21063538 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-23 098 DATE: October 14, 2021 ORDER Entitlement to service connection for lumbar spondylosis, with degenerative disc disease (DDD) is denied. FINDING OF FACT The Veteran's lumbar spondylosis, with DDD did not have its onset during active service and did not manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for lumbar spondylosis, with DDD have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had several periods of active duty in the U.S. Army National Guard and Air Force from May 1990 to November 1990, September 2005 to December 2005, May 2007 to July 2007, May 2008 to July 2008, and from October 2011 to January 2012. At an August 2018 videoconference hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. This matter was previously denied by the Board of Veterans' Appeals (Board) in a decision issued in July 2019. In that decision, the Board denied entitlement to service connection for cervical strain and lumbar spondylosis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court issued an order granting a Joint Motion for Partial Remand (JMPR), which vacated the Board's July 2019 decision and remanded the matter for adjudication consistent with the instructions outlined in the JMPR. The Board remanded the matter in accordance with the JMPR in March 2021. That development having been completed; this claim is once again before the Board. It is noted that the issue of entitlement to service connection for cervical strain was previously before the Board. However, following the March 2021 Board remand, in a July 2021 rating decision, the RO granted service connection for that condition. As such, this claim is considered resolved in full and shall not be further discussed. Entitlement to service connection for lumbar spondylosis, with DDD The Veteran contends that his lumbar spondylosis and degenerative disc disease had their onset during his periods of active duty service due to heavy labor. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, certain enumerated disorders, such as arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Board concludes that, while the Veteran has a current diagnosis of lumbar spondylosis and DDD, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of lumbar spondylosis and DDD began during service or is otherwise related to an in-service injury or disease. The Veteran's service treatment records are silent for complaints of, or treatment for, symptoms that could be associated with his current diagnosis while the Veteran was in active service. Further, he was not diagnosed to have the claimed disability during active service, nor within one year of separation from active service. The disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed to have the claimed disability until July 2013, which is outside of the applicable presumptive period. As the Veteran's disability did not manifest within the presumptive period after his separation from service, presumptive service connection is not applicable in this case. 38 C.F.R. § 3.309(a). Turning to direct service connection, there were no relevant notations on post-deployment assessments conducted after the Veteran's active service deployments to Qatar in 2005, 2008, and 2011. The only problem noted on the 2011 post-deployment assessment was a right shoulder injury. Personnel records indicate that the Veteran's military occupational specialty was in supply and materiel management and that he had qualifying Gulf War service in Qatar. The Veteran testified that he first sought treatment for low back pain in 2006. The first record regarding care through the VA for low back pain was in February 2011; however, no specific diagnosis was noted. A January 2014 inactive service record noted low back pain. Following active service, the first indication of a lumbar spine disability was a CT scan conducted in July 2013 which revealed a degenerated disc with bulging annulus fibrosus and small central disc herniation with mild compression of the dural sac at the L5-S1 vertebrae, and a degenerated disc with bulging annulus fibrosus and small left posterior disc herniation with compression of the dural sac at the L4-L5 vertebrae. In an August 2014 statement, the Veteran reported that his cervical and lumbar spine disabilities began due to the nature of his job and deployments to the Middle East. He described working in supply and constantly moving heavy equipment. He stated that the heavy labor caused pain, which was aggravated during his deployment. The Veteran was first afforded a VA examination in December 2016. The examiner opined that the Veteran's lumbar condition was less likely than not related to active service. Nevertheless, the Veteran's medical history was not particularly analyzed, and generalized principles were relied on in reaching the conclusion. A January 2017 addendum opinion by the same examiner was similar and again relied on generalized principles in opining that the Veteran's lumbar condition was less likely than not related to his active service. The Veteran was afforded another VA examination in June 2021. The VA examiner opined that the Veteran's lumbar condition was less likely than not related to his pain during active service. The Veteran denied a history of lumbar spine trauma during service. The examiner noted that the lumbar spine imaging conducted in April 2015 correlated with the normal, atraumatic changes of the aging process, and the changes seen were expected with age and unrelated to traumatic events. The examiner opined that the December 2016 observation that stated that any diagnosis or event that affects one anatomical site is independent from another was correct, in that while one dysfunctional area could affect another, the adjacent area must be affected as well. The examiner stated that for example, if a lumbar condition was said to affect a cervical area, the thoracic area must be affected as well, given that it is adjacent to both the cervical and lumbar areas. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives the most probative weight to the June 2021 VA examiner's opinion. The Veteran believes his lumbar condition is related to an in-service injury or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement for service connection for a lumbar condition. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.