Citation Nr: 21066289 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 13-33 512 DATE: October 29, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran's arthritis of the low back was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and a low back disability is not otherwise etiologically related to an in-service injury or disease to include the in-service fall. CONCLUSION OF LAW The criteria for service connection for a low back disability, including arthritis, to include as secondary to bilateral knee disabilities, are not met. 38 U.S.C. §§ 1110, 1112, 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 in the United States Army from November 1969 to August 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2010 rating decision. This matter was previously remanded in February 2016 and December 2019 Board decisions for further evidentiary development. The Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2015, the Veteran testified at a Board hearing before a Veterans Law Judge who has since left the Board. A transcript of that hearing is of record. The Veteran was offered an opportunity to participate in another hearing, but indicated in October 2021 that he did not with to appear at another Board hearing. Entitlement to service connection for a low back disability The Veteran contends that his low back disorder is related to service. Specifically, he asserts that his current low back disability is due to an injury during basic training when he fell down the stairs. He has reported continuing low back symptoms since that incident. A December 1969 service treatment record shows a report of low back pain following a fall. However, the impression was no orthopedic pathology found. A contemporaneous x-ray showed slight rotoscoliosis with specific areas of bony pathology seen. 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). Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The question for the Board is whether the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has arthritis, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Although service records show that the Veteran reported low back pain following a fall down the stairs, there is no objective findings of arthritis in these records. Likewise, although the Veteran reported back trouble in his medical history upon discharge, the contemporaneous August 1970 service examination showed that the spine was clinically evaluated as normal. Moreover, there is no objective evidence of any symptoms associated with or diagnosis of arthritis within one year of discharge. In this regard, a December 1974 VA treatment record, four years after his discharge from service, showed that the Veteran denied injuries as well as any joint pain, swelling or tenderness. Importantly, a March 1994 x-ray, approximately 24 years after his discharge from service, showed that there was no abnormality demonstrated in the lumbar spine. In other words, the medical evidence of record shows no objective evidence of arthritis until many years after service. Further, the Board finds that the Veteran's reports of continuity of symptomatology to not be credible. The Veteran's reports are internally inconsistent to his reports in post service treatment records, which despite seeking consistent treatment from 1971, are silent with respect to any reports of back problems until September 1998, 18 years after his discharge from service. Importantly, at that time, private treatment records show that the Veteran reported back pain following a motor vehicle accident where he was stopped and rear-ended from behind. A subsequent November 2002 record again shows low back pain following the 1998 motor vehicle accident. During the course of seeking treatment, the Veteran never reported that his low back pain was due to the fall in service until he filed his claim in 2004. These inconsistencies as to the onset of back pain weigh against the Veteran's credibility concerning pertinent symptomatology since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Importantly, as discussed further below, the VA examiner has attributed the Veteran's arthritis to his age. In sum, there is no competent or credible lay or medical evidence showing pertinent symptomatology since the injury in service. Service connection for a low back disorder may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's low back disorder and an in-service injury, event or disease, to include the in-service fall. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In support of his claim, the Veteran submitted a July 2015 private opinion, which indicated that the Veteran's low back complaints may be directly related to the in-service slip and fall accident. However, as the private examiner couched this opinion in speculative terms and did not offer any rationale, the opinion is not sufficient for the basis of the award of service connection. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Nieves-Rodriguuez v. Peake, 22 Vet. App. 295 (2008). The Board previously found that the August 2013 VA examination and April 2016 VA addendum opinion were inadequate and remanded this matter to afford the Veteran's another VA examination with opinion. Significantly, after reviewing the claims file and examining the Veteran, the October 2020 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 reiterated that the Veteran's diagnosed osteoarthritis is less likely than not related to the Veterans' military service, to include the documented in-service fall. All potentially relevant evidence was reviewed and considered in the completion of this opinion to include the service treatment records, Board remand, VA medical records, private Medical Records, and examinations. There is no question that pathology is present, but the changes are likely due to his age rather than a fall at the age of 17, when he was diagnosed with a lumbar sprain. The examiner noted that a sprain affects the soft tissue of the back and would not lead to arthritic changes in the spine. In 1994, imaging was normal, which was 24 years after separate from service. In 2003, the Veteran's MRI showed mild osteoarthritis of the spine, which is common in a man who is in his 50s. The examiner concluded that this disability is more likely from normal ageing than from a fall that took place when he was 17. The Board recognizes that the examiner indicated at one point that the low back strain was in 1979 as opposed to 1969. However, this mistake was obviously a typographical error as the examiner showed in other parts of the opinion that he was aware of when the incident happened. Thus, this error does not render the opinion inadequate or change the crux of the opinion. 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). The Board acknowledges that the Veteran has submitted publications concerning musculoskeletal injuries, including arthritis, and service. In this regard, the Board notes that when medical articles or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion, a claimant may use such evidence to meet the requirement for a medical nexus. Wallin v. West, 11 Vet. App. 509 (1998). However, an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise "is too general and inclusive." Sacks v. West, 11 Vet. App. 314, 317 (1998) (a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility"). However, as discussed above, the October 2020 VA examiner considered the claims file and examined the Veteran when forming the opinion concerning the Veteran's low back disability and found no nexus between the in-service fall and his current low back disability. Moreover, given that the articles are general in nature and do not specifically address the Veteran's disability, they have minimal probative value when weighed against the VA opinion that is specific to the Veteran's case. Again, the VA examiner thoroughly considered the Veteran's record and medical history when forming his opinion. The Veteran believes his low back disorder is related to his fall in service. However, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. 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). Consequently, the Board gives more probative weight to the October 2020 VA examination with medical opinion. In conclusion, based on the analysis above, a preponderance of the evidence is against the Veteran's claim for service connection for a low back disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.