Citation Nr: 21064505 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-45 796 DATE: October 20, 2021 ORDER Entitlement to service connection for a degenerative joint disease of the thoracolumbar spine (claimed as a lower back disorder) is denied. FINDING OF FACT The most probative evidence of record reflects that the Veteran's lower back disorder was not incurred in service or related to any injuries therein. CONCLUSION OF LAW The criteria for service connection for a lower back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2012); 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 in the U.S. Marine Corps from June 1971 to October 1977. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of April 2014 by a Department of Veterans Affairs (VA) Regional Office. In March 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). The VLJ kept the record open for an additional 60 days for the Veteran to submit supplemental evidence. A copy of the transcript is of record. The issue was previously before the Board in September 2020 and remanded. The RO was mandated to obtain Social Security Administration (SSA) administrative decision and any outstanding medical records and provide the Veteran with a VA examination. In October 2020, the SSA documents were received and associated with the claims file. In December 2020, the Veteran was afforded a VA Back (Thoracolumbar Spine) Conditions examination with opinion. The examination is adequate because it involved a review of the claims file, an interview of the Veteran, an examination, and the opinion was accompanied by a well-reasoned rationale. Thus, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for a low back disability is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). To establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has been diagnosed with degenerative arthritis of the spine. He contends that that service connection is warranted for his back disability. He testified during his Board hearing that his back disability was incurred in service from moving furniture within the living quarters. The Veteran's service treatment records (STRs) show a sole complaint of lower back pain, accompanied by headaches, in September 1972. The Veteran was given aspirin for his pain. Although the STRs do not document his specific injury, the Board finds his description of it to be credible. At his separation physical in September 1977, the Report of Medical History noted a normal spine/other musculoskeletal. The Veteran's post-service treatment notes reflect the July 1998 complaint of back pain. He was assessed with acute sacroiliitis and low back pain. Treatment records dated in October 2000 notes a diagnosis of back strain. In March 2006, the Veteran was assessed with "acute lumbar strain [and] questionable degenerative disc disease of the lower lumbar spine." In support of his claim, the Veteran provided a May 2019 opinion from his private clinician, Dr. G. M. P., who opined that "the Veteran dealt with back pain most of his adult life, and ultimately underwent surgery at L4-L5 and L5-S1 in 2008." The Board notes that while this evidence indicates that the Veteran had back pain most of his adult life, it provides not a nexus to service nor indicated conclusively that the Veteran's degenerative arthritis of the spine began within one year of service. In December 2020, the Veteran was afforded a VA medical examination to determine the possible etiology of his lower back disorder. The Veteran reported that after he was promoted to sergeant, he was given his own room, and during his attempt to separate the bunk beds, he heard a crunch in his back. He was diagnosed with degenerative disc disease in 2007 and saw a chiropractor a few times per week. In 2008, he had a fusion of L4-5, L5-S1 and did well until 2012, when he suffered a fall. The examiner diagnosed degenerative arthritis of the spine, spinal fusion, and spinal stenosis. The examiner proffered a negative nexus opinion and explained that During service, the Veteran's back injury was acute only. He reported lower back pain in 1972, but no diagnosis was established, and STRs are negative for any follow-up care or treatments during military service. His first appointment within the supplied C-file, on record, was in 2007. This is 35 years after the initial injury. A nexus has not been established for the claimed lower back disorder due to an in-service injury. After considering the record, the Board finds that service connection for a lower back disorder is not warranted. The record lacks any competent evidence of a relationship between the Veteran's current back disorder and his injury during active service, including the one incident of lower back pain reported in September 1972. Specifically addressing the Veteran's degenerative arthritis of the spine, the Board notes the 2007 diagnosis, which came 30 after his service period ended. The Board finds the examiner's conclusion most probative against a finding that the Veteran's diagnosed lower back disability was incurred in service or a result thereof and continued. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion.). Further, there is not any competent medical evidence of record that contradicts the comprehensive findings of the VA examiner. The Board is cognizant of the Veteran's September 1972 in-service complaint of lower back pain. However, the post-service treatment records do not show complaint, treatment, or diagnosis of any back disability until July 1998, assessment of acute sacroiliitis and low back pain. A diagnosis of degenerative disc disease came in 2007, many years following service. The competent medical evidence of record, notably the VA examination of December 2020, found no relationship to service or any incidents therein. The Board acknowledges that the Veteran is competent to report observable symptoms, like back pain. The descriptions are also credible. The specific issue in this case, whether his currently diagnosed back disability is etiologically related to service, falls outside the realm of common knowledge of the Veteran. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Determining the etiology of his lower back disability is a medically complex task and is not within the competence of the Veteran who, in this case, have not been shown by the evidence of record to have the training, experience, or skills needed to diagnose and determine the etiology of his lower back disorder. Further, his contentions were investigated by a credible medical examiner who found no relationship to service or any incidents therein, including his one reported back pain complaint in 1972. The examiner specifically acknowledged a review of the entirety of the record and found no relationship between the September 1972 in-service complaint of lower back pain. As a result, the persuasive value of the lay etiology opinion is low. The Board finds no competent, competent medical or lay evidence that satisfies the nexus element of the service connection claim. Shedden, 381 F.3d at 1166-67. Accordingly, the preponderance of the medical evidence of record is against finding that the Veteran's lower back disorder was incurred in service or in any way related to her active service period. Therefore, service connection is not warranted for a lower back disorder. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claims, the doctrine is not for application. Gilbert, 1 Vet. App. 49 (1990).). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.