Citation Nr: 21067297 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-02 737 DATE: November 3, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran's low back disability 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 the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 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 from August 1988 to March 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in March 2020; a transcript is of record. In November 2020, the Board remanded the claim for further development. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Additional VA treatment records received after the most recent supplemental statement of the case in December 2020 are either not relevant or duplicative of evidence already of record. Thus, a remand for RO consideration or waiver from the Veteran is unnecessary. See 38 C.F.R. § 20.1304. 1. Entitlement to service connection for a low back disability is denied. The Veteran contends that his current low back disability is related to back injuries he incurred during active service. See April 2014 correspondence; February 2015 notice of disagreement (NOD). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of degenerative arthritis and degenerative disc disease (DDD) of the lumbar spine, the diagnosed condition was not shown as chronic in service; it did not manifest to a compensable degree within a presumptive period; it was not noted in service with attributable continuity of symptomatology; and it is not otherwise related to service. Turning to the records, the Veteran's June 1988 enlistment examination noted normal spine. A September 1988 record noted low back pain for assessment; another September 1988 record noted the back pain as a temporary, minor problem. A January 1989 record noted a complaint of low back pain and pain in hamstrings after physical training; the assessment was muscle strain. A November 1989 record noted a complaint of low back pain from playing basketball; the assessment was possible strain. In a November 1990 record, he reported he hurt his back while doing a lay-up; the assessment was acute thoracic lumbar muscle strain. A June 1991 periodic exam noted normal evaluation of his spine. In a February 1992 separation report of medical history, the Veteran denied recurrent back pain, and arthritis, rheumatism, or bursitis. The corresponding separation exam shows normal evaluation of his spine and musculoskeletal system. After service, VA records are silent for a back condition until a November 2016 VA medical opinion. A 2001 private record first documented issues with his back. A September 2001 private imaging study from Kaiser noted a complaint of chronic pain and a diagnosis of back pain. The findings noted that morphology of vertebral bodies and posterior elements was normal; no significant discogenic changes were found. The result impression was "normal." Kaiser treatment records from 2012 to 2014 intermittently noted a diagnosis of low back pain; the records did not reveal a nexus opinion. In the April 2014 correspondence, the Veteran asserted that he suffered a back injury during basic training in 1988. He stated he had re-occurring back problems during his active service. In the February 2015 NOD, the Veteran asserted he injured his back at basic training, and reinjured his back several times at his duty station. He stated his symptoms are getting worse. Private records from Peachtree Orthopaedic received in January 2021 show treatments for back condition in 2017 and 2018. Notably, an October 2017 X-ray noted mild degenerative changes at L4/5 and L5/S1; the assessments included lumbar discogenic pain and lumbar facet joint pain. A May 2018 record noted the following assessments: lumbar discogenic pain - disc herniation at L4-5; annular tear of lumbar disc - intervertebral disc degeneration in the lumbar region; and lumbar facet joint pain. The records did not reveal a nexus opinion. Private record from Piedmont Healthcare received in January 2021 show treatments for his back condition from 2015 to 2019. Notably, in a July 2015 record, the Veteran reported low back pain for several years. The assessment was back pain, and a subsequent X-ray of the thoracic spine found mild thoracic spondylosis. A June 2017 record noted complaints of low back pain, and the assessment was chronic bilateral thoracic back pain. A subsequent X-ray of the thoracic spine revealed no acute bony abnormalities; a lumbar spine X-ray revealed moderate degenerative disc changes at L4-5 and L5-S1. The records did not include any medical opinions. Private records from Sparlin Health received in February 2021 show chiropractic treatments after motor vehicle accidents. A July 2011 record noted the Veteran was rear-ended; he reported pain in the neck, upper back, mid back, lower back; headaches; numbness in his arms and right hand; and spasms in the legs. Objective findings wrote spasms in the cervical, thoracic, lumbar (CTL) spines, trapezius muscles, and gluteal muscles. Chiropractic treatments continued until August 2011. A September 2018 record noted another motor vehicle accident; the assessment was left hip and CTL strains with muscle spasm. Chiropractic treatments continued till November 2018. The Veteran underwent a VA contract examination for his back condition in June 2014. He was diagnosed with degenerative arthritis and DDD of the lumbar spine. He reported his lower back condition began during basic training in August 1988, which has worsened. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the service treatment records are episodic, which indicate that the conditions were acute and transitory. The examiner noted that the last service treatment record showing a back condition was in 1990, which represents many years of time gap from this exam in 2014, which does not establish a longitudinal trend. He added that subsequent in-service exams in 1991 and 1992 were normal. The examiner concluded that in consideration of acute and transitory in-service events, temporal relationships, and normal pertinent subsequent exams, it was less likely that the claimed condition is related to service. An addendum VA opinion was received in November 2016. The examiner was asked whether it is as likely as not that degenerative joint disease (DJD) or DDD of the back is related to service. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that service treatment records do not document a chronic ongoing treatment or condition for DJD/DDD of the back. The examiner noted that the Veteran was seen briefly several times for pain/strain which are distinct and separate diagnoses. The examiner further noted that the Veteran's separation examination was normal for DJD/DDD of the back. At the March 2020 Board hearing, the Veteran testified that he injured his back during basic training and had lower back strain. He stated he also injured his back while playing basketball during service. He indicated he started getting treatment for his back more than a year later after separation from service. He stated he was taking over-the-counter drugs at that time, and did not go to any medical facilities. He stated he began seeing a doctor at Kaiser probably a couple years after service, after he began feeling he had lower back pain and strains. Upon review of the evidence, the Board finds that service connection for low back condition is not warranted. The Veteran has degenerative arthritis of the spine. Although arthritis is a chronic disease under 38 C.F.R. § 3.309(a), it was not noted in service and did not manifest to a compensable degree within a year of his separation from service. Further, the diagnosis of arthritis is made over 20 years after separation from service. To the extent the Veteran contends that recurrent back pain since service demonstrates a manifestation within a year of separation, he is not competent to make such a diagnosis or provide a nexus opinion regarding this issue as it is medically complex; it requires knowledge of anatomical relationships and the interpretation of complicated diagnostic medical testing, which he has not shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, service connection is not warranted on a presumptive basis under the provision of 38 C.F.R. § 3.309(a). Service connection is not warranted on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b). The Board acknowledges the Veteran's assertion that he experienced recurrent back pain since separation. Indeed, at his hearing, he testified that he did not have medical insurance when he discharged so he treated his pain primarily with over the counter medications. However, the competent medical evidence establishes that the back pain the Veteran may have experienced in service and thereafter does not relate to the current back disability. The VA examiners in June 2014 and November 2016 both reviewed the claims file and opined that the current back disability was not incurred in or as a result of military service. The medical opinions are sufficiently probative as they were based on consideration of the entirety of the Veteran's medical history, lay statements, and supported with cogent rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent medical opinion to the contrary. The Veteran believes his low back condition is related to his active service. As noted earlier, the Veteran is not competent to provide a nexus opinion regarding this issue as the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiners' opinions. (Continued on the next page) As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. Accordingly, service connection for a low back disability is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.