Citation Nr: 21067217 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-57 301 DATE: November 3, 2021 ORDER Entitlement to service connection for lumbar degenerative disc disease with spondylosis is denied. FINDING OF FACT The Veteran's lumbar degenerative disc disease with spondylosis was not shown as chronic in service, did not manifest to a compensable degree within the applicable presumptive period, a continuity of symptomatology is not established and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for lumbar degenerative disc disease with spondylosis are not met. 38 U.S.C. §§ 1110, 1112, 1131, 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 Marine Corps from December 1981 to December 1985 and from December 1989 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board denied service connection for lumbar degenerative disc disease with spondylosis. The Veteran then appealed this decision to the Court of Appeals for Veterans Claims (Court). A September 2020 Memorandum Decision vacated the Board's May 2019 decision and remanded the matter to the Board for additional development. The Court found the August 2015 VA examiner speculated about the source of the Veteran's current disability, refencing a high probably of post-service back injury, but failed to address and in-service injury ignoring the report of a 1992 football injury. The Board remanded the claim for additional development in April 2021, specifically a VA examination to determine the etiology of the claimed lumbar spine disorder. A VA examination and etiology opinion was obtained in July 2021. The Board therefore determines that there has been substantial compliance with its previous remand. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is among the listed conditions, with a presumptive period of one year following service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for lumbar degenerative disc disease is denied. The Veteran asserts that he has a lumbar spine disorder incurred in or caused by active service. The Veteran has a current lumbar disorder, diagnosed as degenerative disc disease and spondylosis as evidenced by September 2015 VA examination. In an August 2016 notice of disagreement, the Veteran asserted that he injured his back in 1992 and he visited Hamilton Hospital, that he went to an Army physician in 1993 and his back issue remained unresolved. In an October 2017 substantive appeal, the Veteran asserted he sustained a back injury in 1991 while in service and that the injury was due to herniated disc. Service treatment records include a single complaint of back pain. In a March 1993 examination, the examiner noted the spine as normal. In an associated medical history report, the Veteran specifically denied recurrent back pain. In an October 1993 separation examination, the examiner noted the spine as normal. In an associated medical history report, the Veteran specifically denied recurrent back pain. In a subsequent October 1993 note, the Veteran reported a history of low back pain since September 1991. He stated he was seen by an emergency room and chiropractor. After a physical examination, the examiner noted an acute somatic defect, lumbar spine region. Post-service treatment records include September 2014 private chiropractic notes in which the Veteran reported back pain since 1991. An x-ray report showed moderate degenerative disc disease at the L3-4 and advanced degenerative disc disease with possible spinal stenosis at L5-S1. In an October 2014 letter, Dr. C., the Veteran's treating chiropractor, stated that the Veteran was initially seen in September 2014 for examination and treatment of low back pain. The Veteran reported a history of back pain since 1991, while he was serving in the Marine Corps. He was not able to pinpoint a specific incident or accident. He stated he began to have back pain in 1991 and has tried a variety of approaches to lessen or minimalize his pain. Since he has had recurring episodes of low back pain since 1991, the diagnosis of degenerative disc disease with possible spinal stenosis is not surprising. The chiropractor stated that it is more likely than not that the Veteran's back disorder is the direct result of his military service in the Marine Corps. During an August 2015 VA examination, the Veteran reported he has a "bad back" and he injured his back while playing football around 1992. He reported he worked as an off short oil technician as a civilian. The examiner noted that the findings do not support a claim based on injury in service. There is a high possibility of the Veteran injuring his back during his civilian employment. The radiographic findings are consistent with natural aging process. The Veteran underwent another VA examination in July 2021. The examiner noted that the Veteran reported that he began having back pain in 1991, that he could not recall any specific injury or trauma and that he suspected that his disorder was secondary to military exercises and activities. The Veteran admitted to being evaluated and diagnosed with a herniated disc in his lumbar region, that he was treated with medication and that his symptoms progressed and he was treated by a chiropractor in the past. The examiner noted that an X-ray report showed multilevel degenerative disc disease and spondylosis, that the Veteran complained of lower back pain for one and half weeks in October 1993 and that he had a history of lower back pain since September 1991 but there are no documented complaints of back symptoms in September 1991. The examiner noted that this is the only documented occasion that the Veteran sought treatment for lumbar spine in service and the Veteran did not seek follow-up treatment for this injury. The examiner noted that the post-service treatment records first showed lumbar symptoms in October 2014, approximately 20 years after separation from service and that the Veteran reported back pain began in 1991 but was unable to pinpoint a specific incident. The examiner noted that although the Veteran had reported a football injury in 1992, he stated that he was uncertain if he injured his back while playing football and that he stated that it could have been related to tug of war, racing, or football from a delayed entry program pool meeting. The examiner noted that Dr. C. had stated that he had reviewed the Veteran's medical records which revealed a moderate degenerative disc disease at the L3-4 and advance degenerative disc disease at L5-S1 with possible spinal stenosis and that Dr. C. stated he was "not surprised" at the diagnosis as the Veteran has had recurring episodes of low back pain since 1991 In an August 2021 addendum opinion, the VA examiner noted there is one service treatment record that documents complaints of back pain in 1991, that a separation examination in 1993 fails to show continuance of this pain and that there is an X-ray report from 2021 that mentions degenerative disc disease and spondylosis. The examiner noted that an absence of document and follow-up examinations does not allow a nexus to be established and opined that the degenerative disc disease is less likely than not incurred in, aggravated by, or otherwise etiologically related to the Veteran's active duty service. With regard to presumptive service connection, the Board finds that the Veteran's degenerative disc disease is properly afforded such consideration, as arthritis is one of the enumerated conditions in 38 C.F.R. § 3.309(a). However, there is no probative evidence of record that the Veteran's lumbar spine arthritis manifested to a compensable degree within one year of the Veteran's discharge from service in 1993. See 38 C.F.R. § 3.307(a), 3.309(a). Instead, the probative evidence of record shows that the Veteran was not diagnosed with arthritis until 2014, nearly 20 years after service. Moreover, as noted above, the Board finds that the Veteran has not provided credible testimony that symptoms of arthritis have continued since service discharge. As such, presumptive service connection as a chronic disease, to include based on continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct service connection, the Board finds the July 2021 VA opinion and August 201 VA addendum opinion to be highly persuasive to the issue of whether the Veteran's current lumbar spine disorder is related to service. The Board places great probative weight on the VA opinions in this case, as they are consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran's specific disability picture. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Specifically, the July 2021 VA examiner opined that Veteran's current lumbar spine disorder was not related to service because the Veteran's in-service complaints of persistent back pain were inconsistent with the medical evidence and because the first post-service mention of a lumbar spine disorder was many years after service discharge. Although the VA examiner emphasized the length of time before the Veteran sought treatment after service, this does not render the opinions inadequate. A VA examiner must consider the Veteran's lay statements regarding the incurrence of a disorder and the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). However, in the present case, as discussed in detail below, the Board finds that the lay statements of the Veteran regarding onset and continuity to not be credible. Implicit in the examiner's rationale was that if the Veteran's lumbar spine symptoms had been significant, he would have sought additional treatment in service or post-service treatment earlier. Moreover, "there is no reasons or bases requirement imposed on examiners." Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Rather, an adequate medical report must rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304 (2008) (holding, in the context of weighing one medical opinion with another, that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion"). Overall, the opinions of record are supported by an explanation, based on a review of the claims folder and examination of the Veteran, and supported by the Veteran's medical records. The Board also acknowledges that it previously found the August 2015 VA opinion to be inadequate as the examiner referred to a high probability of a post-service back injury, and failed to address an in-service injury. However, the Court found that this opinion to be inadequate in its September 2020 Memorandum Decision as it cited to evidence of a post-service injury without evidence of record indicating any post-service injury that incurred in his civilian employment as an off-shore oil technician. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). This opinion is therefore being afforded little, if any, probative weight. The Board acknowledges the October 2014 private opinion that the Veteran's lumbar spine disorder was "more likely than not a direct result of his military service in the Marine Corps" as the Veteran reported an onset of back pain in 1991. However, the Board assigns it little, if any, probative value as it was based solely on the Veteran's subjective history and does not transform such into competent evidence of in-service incurrence. See LeShore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). There is no indication that the private chiropractor reviewed the Veteran's service treatment records, or any post-service treatment records. Thus, the opinion is outweighed by the negative VA etiology opinion cited above. The Board acknowledges the Veteran's assertions that his current lumbar spine disorder is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of a lumbar spine disorder falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether his diagnosed back disorder is related to his military service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that his current lumbar spine disorder is related to service. The Board also acknowledges the assertions of the Veteran that he has suffered from back pain since service. The Veteran is competent to report back pain symptoms that he experienced. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the statements regarding onset and continuity of the Veteran's current back pain symptoms, while competent, are not credible. In this regard, the lay contentions that the Veteran has suffered from continuous back symptoms since 1991 are inconsistent with other evidence of record. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). As detailed above, the Veteran did not report recurring back pain since 1991 until October 1993 where he also reported low back pain for the past one and half weeks and that he had a history of low back pain in September 1991. Moreover, the Veteran had specifically denied recurrent back pain on medical history reports dated in March 1993 and October 1993. Furthermore, the Veteran's spine was clinically normal at examination in March 1993 and October 1993. In an October 1993 Report of Medical History, the Veteran explicitly denied that he had, or that he ever had recurrent back pain and explicitly denied that he had any illness or injury other than those already noted. Moreover, the first clinical evidence of any back symptoms after active service was in 2014, nearly 20 years after the Veteran's discharge. The absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous back symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). This lack of medical treatment tends to undermine the veracity of the Veteran's more recent statements that he has experienced back pain continually since service. While the Board is sympathetic to the Veteran's claims, taking into account all of the relevant evidence of record, the preponderance of the evidence is against a finding of an etiological relationship between the Veteran's current lumbar spine disorder and his military service. Accordingly, the Board finds that the claim of entitlement to service connection for a lumbar spine disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.