Citation Nr: 21066014 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-24 136 DATE: October 28, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDING OF FACT The Veteran's lumbar spine disorder was not shown as chronic in service, arthritis did not manifest to a compensable degree within the applicable presumptive period and it is not otherwise etiologically related to an in-service injury or disease, to include exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for a lumbar spine are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from April 1963 to April 1967. This matter comes before the Board of Veterans' Appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's May 2015 Substantive Appeal, he initially requested a videoconference hearing before a Veterans Law Judge. The Veteran withdrew his request for a hearing in August 2020. The Board has recharacterized the Veteran's claim of entitlement to service connection for spinal stenosis as a claim of entitlement to service connection for a lumbar spine disorder. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as reflected in the issue section above. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability alone). In January 2021, the Board remanded this matter to the RO for further development. More specifically, the Board directed the RO to schedule the Veteran for a new examination to determine the etiology of his claimed lumbar spine disorder and to obtain updated VA treatment records. Updated VA treatment records were associated the claims file and a January 2021 letter informed the Veteran that he may submit an appropriate authorization form to allow VA to obtain records on his behalf. A VA examination was conducted in April 2021. In April 2021, the RO issued a Supplemental Statement of the Case further denying service connection for the Veteran's claimed lumbar spine disorder. The Board therefore finds that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998). The matter now returns to the Board for further appellate review. Service Connection Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). A veteran who had no less than 30 days of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987 shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.307(a)(7). However, neither arthritis nor spinal stenosis are diseases associated with exposure to contaminants in the water supply at Camp Lejeune, therefore, his disability cannot be presumed under 38 C.F.R. § 3.309(f). Furthermore, a veteran who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 38 C.F.R. § 3.307(a), 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 is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309(a). Here, the Veteran was diagnosed with degenerative arthritis in 2021, more than 50 years after service, therefore, his disability also cannot be presumed as a chronic disease and a continuity of symptomatology has not been shown. Although service connection is not warranted here on a presumptive basis, the Board will also consider the claim on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by active service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245. When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. When the presumption of soundness is not rebutted, the claim must be treated as a direct service connection claim. In determining whether service connection is warranted for a disability, 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a lumbar spine disorder is denied. The Veteran contends that his lumbar spine disorder is a result of exposure to contaminated waters at Camp Lejeune. See July 2014 Claim. In the April 2015 rating decision, the RO conceded exposure to contaminated waters, therefore, the issue becomes whether the Veteran's lumbar spine disorder can be presumed by his exposure or whether there is a nexus between his service and current lumbar spine disorder. The Veteran's service treatment records reflect a finding of mild lordosis in April 1963, after the February 1963 service entrance examination that found the Veteran's spine to be normal. A March 1967 service discharge examination found the Veteran's spine to be normal and was otherwise negative for any relevant abnormalities. Post-service treatment records noted that in June 2010, the Veteran was diagnosed with rheumatoid arthritis with spinal stenosis. It was revealed in October 2011 that the Veteran reported a back injury 30 years prior, that was misdiagnosed as a problem with his neck. It was also noted that he suffered compression fractures of the C5, C6 back when he hurt his neck. During his April 2021 VA examination, the Veteran was diagnosed with degenerative arthritis of the back. As an initial matter, the Board notes that a February 1963 service entrance examination found the Veteran's spine to be normal. An April 2021 VA examiner opined that the claimed lumbar spine disorder did not clearly and unmistakably pre-exist service as there was no evidence presented at the examination or during this entrance examination which indicates that the Veteran had a pre-existing lumbar spine disorder. Therefore, the Veteran's lumbar spine disorder did not pre-exist service and the presumption of soundness applies. The Board has first considered whether service connection for arthritis is warranted on a presumptive basis, to include on the basis of a continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested arthritis to any degree within the one year following his discharge from active duty in April 1967. A June 2010 treatment note indicates the Veteran was diagnosed with rheumatoid arthritis with spinal stenosis. In addition, the Veteran reported suffering a back injury about 30 years ago (i.e., in 1981) in an October 2011 VA treatment note which would be more than a decade after service discharge. As such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted for lumbar arthritis. 38 U.S.C. §§ 1101 ,1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct service connection, an April 2021 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that a review of the Veterans service treatment records was silent for back complaints and a review of the Veterans post service treatment records was positive for intermittent reports of lower back pain related to his rheumatoid arthritis diagnosis. The examiner noted that in January 2021, the Veteran reported pain in his hands, wrists, and knees but denied back complaints. In September 2020, the Veteran also denied back pain complaints. In October 2011, the Veteran reported generalized pain after a recent diagnosis of rheumatoid arthritis. The examiner concluded that based on the available evidence, there is no clear chronicity of care for the intermittent lower back pain complaints. It appears, that the Veteran has some link with his rheumatoid arthritis diagnosis, but imaging only shows mild degenerative changes. The examiner reported that he cannot however, link these in any definitive way to his time in service or a period of one year after service. The diagnosis of rheumatoid arthritis was not given until 1999 which was 32 years post-separation. In addition, rheumatoid arthritis is not a presumptive disease of water contamination exposure in Camp Lejeune, and there is no evidence to support this Veteran's rheumatoid arthritis condition as being related to or a result of his active-duty service. The April 2021 VA examiner considered all evidence of record after thorough review of the claims file, including lay statements properly weighed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). Furthermore, the medical examination report contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301. Therefore, the medical opinion is of great probative value. The Board acknowledges the statements of the Veteran as to the existence and etiology of his claimed lumbar spine disorder and acknowledges that the Veteran is competent to give evidence about what he experienced. However, while the Veteran is competent to report his current symptoms, as a lay person he does not have the education, training, or experience to diagnose or opine as to the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran's statements are of low probative value. Thus, the Board concludes that the preponderance of the evidence is against finding that the Veteran meets the criteria for service connection for a lumbar spine disorder. 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 applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.