Citation Nr: 21064403 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-03 995 DATE: October 20, 2021 ORDER Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected knee disability, is denied. FINDING OF FACT The probative evidence does not establish that the Veteran's lumbar spine disability is at least as likely as not related to an in-service injury, disease, or event or secondary to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability, to include as secondary to service-connected knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from June 1986 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). He testified before the undersigned Veterans Law Judge at a videoconference hearing in March 2019. A transcript of the hearing is associated with the claims file. In April 2019, this matter was remanded for further development. 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected knee disability The Veteran asserts that his lumbar spine disability is due to his military service, or secondary to his service-connected knee disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established for a current disability based on a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As previously discussed, the Veteran asserts that his back disability is due to service, to include in-service back complaints; or in the alternative, secondary to his service-connected right knee disability. The service treatment records include March 1990 treatment records that show the Veteran complained of low back pain. Low back strain was diagnosed. During the July 2016 Disability Benefits Questionnaire (DBQ), degenerative disk disease was documented. The private provider, however, did not provide an opinion as to the etiology of the Veteran's lumbar spine disability. In the April 2019 remand, the Board found that a VA examination and opinion was needed as to whether the current degenerative changes currently shown is due to low back pain shown in service or secondary to any right knee disability currently shown. Pursuant to the April 2019 Board remand, the Veteran was examined in November 2019. The examiner indicated that the Veteran's claims file had been thoroughly reviewed. The examiner provided the opinion that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner notes the only objective documentation of back pain occurring during service was from March 1990. There were no service records documenting continuity or chronicity of any back related complaints. The examiner indicated that although there is record of a 1993 incidental finding of congenital scoliosis found on an abdominal x-ray, the first documentation of back complaints after service are from 2005. He noted that low back pain is noted to have worsened following a post-service motorcycle accident. The examiner also noted that the record demonstrates regular health care prior to 2005, without any evidence of back related complaints. Further, the examiner opined that it was also determined that the lumbar spine disability is less likely than not proximately due to or the result of the service-connected right knee disability. Additionally, the examiner noted there was no evidence the back disability was aggravated beyond its natural progression by the service-connected right knee disability. The examiner explained, that if the presence of the Veteran's right knee condition were to affect the spine as a secondary condition, it would have been expected that there would be more advanced disease for his age, or more disease would have occurred more prematurely than expected. Due to the Veteran's age and body habitus, the examiner noted that the Veteran was at high risk for degenerative disc disease. The examiner indicated that the prevalence of degenerative disc disease at the Veteran's age of diagnosis (notably, 38 years of age) was over 50 percent, and the worsening of his condition coincided with a post-service motorcycle accident. The examiner stated that there is no evidence that the Veteran's back disability was more advanced than expected for his age, or more premature than expected for his age, and given the other risk factors for the development of degenerative disc disease, it is unlikely the Veteran's back disability was caused or aggravated beyond its natural progression by the service-connected right knee disability. The Board finds that the November 2019 VA examiner's opinion is the most probative evidence of record as to the etiology of the lumbar spine disability. The examiner's opinion is plainly supported by the evidence of record. There is also no evidence to demonstrate that the lumbar spine disability is due to any other claimed disability. Further, the Veteran was not shown to have degenerative arthritis of the lumbar spine for more than a decade following service. Indeed, the examiner indicated that the in-service back complaints were acute and transitory, and completed resolved. Service connection on a presumptive basis is also not warranted. Here, the earliest notation in available medical records shows a diagnosis of lumbar spine disability is in 2005. As chronic lumbar spine disability was not seen until several years following the Veteran's separation from service, service connection on a presumptive basis is not warranted. Service connection on a secondary basis is not warranted as the probative evidence shows that the right knee disability has not caused or aggravated the Veteran's lumbar spine disability. Indeed, as noted above, the examiner indicated that the Veteran's age and body habitus put the Veteran at high risk for degenerative disc disease. Further, the examiner indicated that the prevalence of degenerative disc disease at the Veteran's age of diagnosis was over 50 percent, and the worsening of his condition coincided with a post-service motorcycle accident. Although the Veteran sincerely believes his lumbar spine disability is related to his military service or secondary to his right knee disability, the Board reiterates that the preponderance of the evidence weighs against findings that an in-service injury, event, or disease occurred that led to his lumbar spine arthritis; or that the current lumbar spine disability is secondary to service-connected right knee disability. Further, although the Veteran is competent to report his back complaints during and since service, he is not competent to opine that his current lumbar spine disability was directly due to service or secondary to a service-connected disability. As such, his statements to that effect are afforded little probative value. (Continued on the next page) The Board appreciates the Veteran's assertions and testimony. However, absent a competent opinion linking the Veteran back disability to service or secondary to a service-connected disability, service connection for a lumbar spine disability must be denied. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.