Citation Nr: 21063830 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-43 484 DATE: October 18, 2021 ORDER Service connection for a back condition is denied. FINDING OF FACT A back condition was not manifested in service; arthritis of the lumbar spine was not manifested in the Veteran's first post service year; and his current low back disability is not shown to be related to his active service. CONCLUSION OF LAW The criteria for establishing service connection for a back condition are not met. 38 U.S.C. §§ 1110, 1131, 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 August 1988 to August 1992. A hearing was held before the undersigned Veterans Law Judge in December 2018. A transcript is of record. In May 2019 and July 2021, the Board of Veterans' Appeals (Board) remanded the issue on appeal for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, a Veteran must show: (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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for a back condition The Veteran contends he entered service, weighing approximately 130 pounds and the weight of carrying the pack and gear during physical training in service resulted in lower back pain. The medical evidence of record, which includes VA examination reports and post-service treatment records, supports a finding that the Veteran has a current diagnosis of sacroiliitis (diagnosed in 1999), lumbosacral strain (diagnosed in 2008), and degenerative arthritis of the spine (diagnosed in 2011). Degenerative disc disease or arthritis of the spine is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Although the Veteran's post-service treatment records establish that he has a current diagnosis for the back, the probative evidence of record, including VA examination reports with corresponding medical opinions, do not support a finding that his current back condition had its onset in service, within one year of separation from service, or is otherwise related to his military service. In this regard, the Veteran testified at the December 2018 Board hearing that he was treated in 1991 for low back problems following outside training. He also testified that at other times during road marches, his back would go out and he would have to visit sick call where he was given Ibuprofen. The Veteran's service treatment records (STRs) have been reviewed. They show that although the Veteran sought treatment for a variety of ailments in service, including for the right knee, right ankle, and toe, they are silent for any complaints, findings, treatment, or a diagnosis related to the back. In August 1992, the Veteran declined a separation medical examination. See STRs. At the December 2018 Board hearing, the Veteran also testified that probably a year or so after service, he began seeking treatment for his back pain. See December 2018 Hearing Transcript. At that time, it was explained to the Veteran that it would be helpful for him to submit any private treatment records to show that he had had a continuous course of treatment from service to the present for his back. A review of the private treatment records that have submitted show they date as early as 1996. The first indication of treatment for the back, however, was not until July 1999 when the Veteran complained of back pain that had been present for 2 days. In September 2008, he was seen for a 5-day history of acute low back pain after he attempted to pick up either a pump or generator while working. The Veteran reported at that time that he had a prior history of low back pain; however, he did not indicate that this prior history had its onset in service. In January 2011, the Veteran was seen again for an acute onset of chronic low back pain for two weeks. See Medical Treatment Records, received March 2011. The Veteran's VA treatment records, which date after 2011, similarly show treatment for complaints of back pain. Although these post-service treatment records establish that the Veteran has received treatment for low back pain following his separation from service, they do not otherwise relate his current low back disability to his military service. Additionally, given the time lapse from service to his present complaints of low back pain, they do not show that he has chronic back pain since service or that his low back arthritis became manifest within one year of his separation from service. As for whether the Veteran's current low back disability is otherwise related to his military service, to include his complaints of experiencing back pain following training exercises and carrying heavy packs and gear, the record includes several medical opinions that address this question. In a January 2019 letter, the Veteran's private physician noted the Veteran's report of experiencing back pain since sustaining an injury in service. The private physician stated that apparently the Veteran had been playing basketball in 1992 when this injury happened and was seen at an off-post clinic. The private physician stated further that the Veteran had experienced back pain flare ups periodically over the years while working and treated conservatively, and therefore it was his opinion that the Veteran suffered a service-connected back injury and had developed post traumatic arthritis. See Private Medical Statement, received February 2019. A review of the STRs shows, however, that while the Veteran did suffer an injury while playing basketball in service, it was to the right knee; there is no indication that he injured his back at that time as well. The private physician's medical opinion is therefore not based on an accurate understanding of the Veteran's medical history. Moreover, the medical opinion lacks objective medical evidence of rationale for the opinion rendered. Therefore, the opinion is not provided probative weight. In November 2019, the Veteran was afforded a VA examination wherein the examiner indicated he had the following diagnoses: sacroiliitis (diagnosed in 1999), lumbosacral strain (diagnosed in 2008) and degenerative arthritis of the spine (diagnosed in 2011). See November 2019 VA examination. The examiner then provided a negative nexus medical opinion indicating there was no data in the claims file that reported a lumbar injury during service. The examiner stated that although there was subjective and objective data supporting the existence of lumbar disc disease that could be the result of service-related activities, there was not enough evidence to substantiate this as the direct cause of the Veteran's injuries. See November 2019 VA Medical Opinions. In July 2021, the Board found that although the November 2019 VA examiner had provided a medical opinion regarding causation, it was conclusive and did not appear to consider the Veteran's lay contentions of injury and pain experienced during service. As a result, the Board remanded this matter for a medical addendum opinion. The Veteran was provided another VA examination in July 2021. The examiner diagnosed degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, lumbosacral strain, intervertebral disc syndrome, and sacroiliitis with foraminal stenosis and left lower extremity lumbar radiculopathy. After examining the Veteran and reviewing his medical history, which included lay contentions of symptomatology of back pain during and after his military service, the examiner opined it was less likely as not that the Veteran's present back condition was related to his military service. In support of that opinion, the examiner highlighted that the Veteran's STRs were silent for any back complaints. The examiner noted that the Veteran was aware of medical facilities in service as was evident by visits for other injuries and conditions while in service, yet the STRs were silent for back complaints. Additionally, concerning symptomatology post service, the examiner noted there was no objective evidence of low back complaints within a year of service separation; the first objective evidence was in 1999. The examiner also reviewed the private physician's statement, but noted it was based on history only. There was no objective evidence or medical studies furnished to verify the physician's statement, and the examiner also pointed out that the private physician did not consider the Veteran's post service occupation as was evidenced by the lack of mention in his statement. Concerning the Veteran's lay statements about pain throughout service, the examiner again noted that STRs were silent for any back complaints and that the Veteran had been aware of the medical service existence as he used them for other medical conditions throughout the service (examples included for the knee, ankle, and infections). The examiner then noted that repeated peer review studies state that a vast majority of low back complaints completely resolve. Lastly, regarding the Veteran's lay statements regarding post service symptoms, the examiner noted the Veteran had been employed post service and it was common practice in the 1990's as it was today to have a pre-employment physical examination prior to employment. The examiner pointed out that the absence of such an examination in the record did not allow for him to to verify the Veteran's statement. See July 2021 VA examination. Based on July 2021 VA examiner's medical opinion, it is not shown that the Veteran's current back condition had its onset in service, within one year of separation from service, or was otherwise caused by his service. As highlighted by the VA examiner, the Veteran does not have a documented injury or complaints of back pain in his STRs. Furthermore, the VA examiner thoroughly considered and addressed the Veteran's lay statements about pain throughout his service and noted that the Veteran had utilized medical services during his service for his knee, ankle, and infections. Therefore, it would seem likely if he was experiencing back pain, he would have reported that as well. The examiner further noted that after service, the first objective evidence of back pain was in 1999, and that there was nothing in the record to support a finding that the Veteran had experienced continuous back pain since service. Moreover, the examiner relied on peer review studies to note that most instances of low back complaints completely resolve. The Boards this opinion to be probative as it was based on a thorough review of the claims file, accurate understanding of the Veteran's medical history, and is accompanied by a rationale for the opinion provided. Significantly, there is no other competent evidence, to include any medical opinions, to the contrary. While the Veteran is competent to report having experienced symptoms of back pain since service and consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current back condition. Additionally, to the extent the Veteran believes his current back condition is related to his military service, he is not competent to provide a nexus opinion regarding this issue. The questions to be resolved in this case involve medical matters and are not capable of resolution through lay observation. 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). In conclusion, the Board finds that there is no probative evidence to warrant service connection for a back condition. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. Service connection for a back condition is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.