Citation Nr: 21066417 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 12-28 190 DATE: October 29, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that any back disability is etiologically related to service or any disease, injury, or event in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to February 1989 and from February 2002 to November 2002. The Veteran also had additional service in the Air Force Reserves. In March 2019, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). A July 2020 rating decision established service connection for a psychiatric disability and a right ankle disability, representing a full grant of that benefit sought. Therefore, the issues of entitlement to service connection for psychiatric and right ankle disabilities are no longer on appeal. Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, 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) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within one year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309 Entitlement to service connection for a back disability The Veteran asserts that a back disability is the result service. In a November 2008 statement, the Veteran stated that she did not have back problems until service. She stated that back pain was due to marching and carrying heavy gear. In July 2010, the Veteran stated that back pain began during basic training, continued, and worsened. During the August 2018 Board hearing, the Veteran testified that back pain started during basic training as a result of service duties, including carrying heavy items. The Veteran's service medical records from 1988 to 2008 do not show any complaints of or treatments for back pain or any back disability. The service medical records show that the Veteran reported and was treated for several medical ailments. The Veteran reported two episodes of hay fever in June 1997 and the Veteran had left wrist surgery in October 2002. However, the Veteran did not report back pain. The Veteran denied recurrent back pain in December 1992 and May 1997 and the spine was noted as normal during a May 1997 examination. During a January 2008 physical, the Veteran did not report any back problems and the doctor noted that the Veteran had "no spine symptoms with full range of motion of lumbar spine." During an October 2008 VA examination for retirement from the Reserves, the Veteran reported a left breast lump, left wrist pain, left ankle pain, and a family history of back pain. The Veteran did not report any back pain. In January 2011, the Veteran reported back pain. The Veteran reported that the onset was gradual with a persistent pattern for three days. A July 2020 VA examination diagnosed lumbosacral strain. The examiner noted that the Veteran reported that low back pain had been present since basic training; and that the consistent running, hiking up hills, and carrying heavy bags had put strain on the lumbar spine. Although the examiner considered the Veteran's lay statements regarding the onset and continuity of back pain, the examiner opined that the current back disability was not the result of service. The examiner stated that there was no documentation of back pain or lumbar strain while in service; the enlistment and retirement examinations were negative for complaints of any low back condition; and July 2020 X-rays were within normal limits. The Board finds that service connection on a presumptive basis for a back disability is not warranted. The evidence does not show signs, symptoms, or diagnoses of arthritis to a compensable level during the Veteran's first year following service separation, service connection cannot be established on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The Board also finds that the preponderance of the evidence is against a finding that any current back disability is the result of service. No medical professional, to include the Veteran's own providers, has opined that a current back disability is related to service. Moreover, the July 2020 VA examiner opined that a current back disability was not the result of service. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds the July 2020 VA medical opinion highly probative. The opinion was prepared by a medical examiner with medical knowledge, skill, training, and expertise and indicates a review of the claims file and consideration of the Veteran's reports. Moreover, the opinion is probative because it is supported by the evidence of record. Specifically, the evidence shows that there were no complaints of or treatments for back pain or a back disability while in service. The Veteran sought medical treatment on numerous occasions and complained of a variety of ailments from 1988 to 2008. The Board finds that if the Veteran were having ongoing back pain, it is reasonable to assume that it would have reported and noted while receiving medical care. The Veteran did not report back pain and denied back problems. The evidence shows that there were no complaints of or treatments for back pain or any back disability until January 2011. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide an opinion on the etiology of a back disability as the opinion requires medical training which he is not shown to possess. Consequently, the Board gives more probative weight the objective medical evidence of record than the Veteran's lay statements. The Board finds that the preponderance of the evidence is against a finding of a back injury, disease, or symptoms during service and continuity of symptoms since separation. The Veteran has not raised any additional theories of entitlement to service connection and no additional theories of entitlement have been raised by the evidence of record. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a back disability and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.