Citation Nr: 21067637 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-01 126 DATE: November 4, 2021 ORDER Entitlement to service connection for degenerative arthritis of the thoracolumbar spine, claimed as a back condition, is denied. FINDING OF FACT The preponderance of the evidence demonstrates that the Veteran's degenerative arthritis of the thoracolumbar spine, claimed as a back condition, did not have its onset during active duty service or manifest within one year of separation, and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the thoracolumbar spine, claimed as a back condition, have not been 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 U.S. Air Force from February 1974 to August 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2016 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board remanded this matter in May 2021 for additional development. As the actions specified in the most recent remand have been substantially completed, the case has been properly returned to the Board for appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1331. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for low back arthritis The Veteran seeks service connection for low back arthritis. He testified that during service he would take paper off a truck and load it onto a pallet, which injured his back. He stated that he was informed he had three bad vertebras in his back, and he related that he experienced back pain from then onwards. The Veteran related that he did not initially know he could go to the VA to get medical treatment after service. He further indicated that in 2000 his back pain worsened from a motor vehicle accident (MVA). The Veteran's service treatment records (STRs) indicate that in August 1975 he complained of back pain from playing ball and was diagnosed with a low back strain. The Veteran otherwise has no complaints of, treatment for, or diagnoses of back issues recorded in his STRs. A separation examination is not of record. August 2002 private medical records indicated that the Veteran hurt his low back while lifting a handicapped family member. October 2003 private medical records indicated that the Veteran had chronic recurrent back pain following an MVA five years ago, and it noted he was obese. Subsequent private medical records indicated that the Veteran was morbidly obese. An October 2008 private medical record diagnosed the Veteran with gouty arthropathy. A November 2008 private lumbosacral spine x-ray indicated that the Veteran complained of back pain and displayed spondylolisthesis. July 2013 private medical records indicated that the Veteran complained of lower back pain. It noted that he was in an MVA in April 2013 and had back pain for the past 8 years. A July 2016 VA examination by a VA examiner indicated that he reviewed the Veteran's claims file and conducted an examination. He listed the Veteran's diagnoses as degenerative arthritis of the spine, multilevel lumbar spondylosis, and spondylolisthesis L4 on L5. The July 2016 VA examiner indicated that the Veteran alleged that his back diagnoses were due to lifting packages during service and stated that his back pain started during service and continued ever since. The July 2016 VA examiner opined that the Veteran's back condition was less likely than not incurred in or caused by his service, and he explained that the Veteran most likely recovered from the low back strain documented in his STRs and did not have documentation of continuous treatment since his service. He asserted that the Veteran's two post-service MVAs involved low back pain, and his condition was mostly likely the result of wear and tear associated with aging. An October 2016 statement from F.J. indicated that he has known the Veteran for thirty years and within that timeframe the Veteran has always suffered from chronic back pain. An undated statement from L.P. indicated that he met the Veteran around 1995 and that he has known for several years about the Veteran's back issues. A June 2021 VA examination by a VA examiner indicated that she reviewed the Veteran's claims file and conducted an examination. She listed the Veteran's diagnoses as degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, and right lower extremity radiculopathy. The June 2021 VA examiner stated that the Veteran said that during service he unloaded trucks and carried heavy cases of paper, which injured his back, and he was told he had damage to his vertebrae. The Veteran also stated that over the years his back pain became progressively worse. The June 2021 VA examiner opined that it was less likely than not that the Veteran's back condition was incurred in or caused by his service. She stated that during the Veteran's entirety of service there was only one STR from August 1975 indicating he was seen for back pain, and after service his medical records link his back pain to post-service car accidents and other injuries and do not correlate his back pain to his military service. She also related that she reviewed F.J.'s statement, which indicated that the Veteran had chronic back pain for the 30 years she had known him, however it was from 2016, meaning that she could only testify to the Veteran's back pain starting in 1986, and the Veteran finished his service 9 years earlier, in 1977. The June 2021 VA examiner related that L.P.'s statement only testified that he knew about the Veteran's back issues for several years and had only known him since 1995. The June 2021 examiner explained that there was strong evidence that the Veteran's current back pain is related to incidences after leaving the service such as being morbidly obese, a lifting incident that injured his back in 2002, and back pain in 2008, and back pain following a car accident in 2013 with physical therapy noting back pain for eight years, NOT dating back to that 1970s inservice. The examiner further supports her opinion noting that the Veteran's Kaiser medical records make no correlation to his in-service incidence of back pain or back pain from lifting as he had several other injuries after leaving service causing the currently diagnosed back condition. Based on a careful review of the subjective and clinical evidence of record, the Board finds that the preponderance of the evidence weighs against a finding that service connection for arthritis of the low back is warranted. Although the Veteran has a current diagnosis of arthritis of the low back, the evidence of record does not indicate that his current disability manifested during service, within one year of service, or as a result of service. As a preliminary matter, the Board has considered whether the Veteran is entitled to service connection for low back arthritis on a presumptive basis. Arthritis is a chronic disease under 38 C.F.R. § 3.309. In this regard, the Board notes that the Veteran's STRs do not show that he was diagnosed with arthritis or suffered from a chronic back condition during service. His STRs document one complaint of back pain from August 1975 from playing ball, and the Veteran was diagnosed with a low back strain. The Board further notes that the Veteran's post-service medical records do not show a compensable manifestation of arthritis to his low back within one year of separation of service, nor do they show continuity of symptomatology from his time in service until the present. The earliest post-service medical evidence showing the Veteran seeking treatment for his back is from and August 2002, 25 years after separation, and the earliest medical evidence of a diagnosis of arthritis of the lower back is from November 2008, over 30 years after separation. Accordingly, the Veteran is not entitled to presumptive service connection for low back arthritis as a chronic disease. Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board now turns to the question of direct service connection. In addition to the absence of medical evidence of low back arthritis during active service, a year post-service, or continuity of symptomology, the Board notes that all of the VA examiners who offered an opinion on whether the Veteran's low back arthritis was more or less likely than not incurred in or caused by the Veteran's military service, specifically the June 2016 and June 2021 VA examiners, provided a negative opinion. The July 2016 VA examiner explained that the Veteran most likely recovered from the low back strain documented in his STRs and did not have documentation of continuous treatment of his low back since service, noted that Veteran's two post-service MVAs involved low back pain, and opined that the Veteran's low back arthritis was likely the result of wear and tear associated with the aging process. The June 2021 VA examiner stated that during the Veteran's entirety of service there was only one STR indicating the Veteran was seen for back pain, and after the Veteran's service his subsequent private medical records link his back pain to post-service car accidents and other injuries and do not mention military service. The June 2021 VA examiner explained that this medical evidence was stronger than the Veteran's statements about the continuity of his symptomatology from service. She further related that that that F.J.'s statement, which indicated that the Veteran had chronic back pain for the past 30 years she had known him, was written in 2016, meaning that she could only testify to the Veteran's back pain starting in 1986, 9 years after his separation from service, and she explained that L.P.'s statement only testified that he knew about the Veteran's back issues for several years, and he had only known him since 1995. There is no evidence that either examiner was either not competent or not credible. Significantly, the June 2021 examiner based her opinion on the Veteran's reported history of the disability, a review of the medical evidence including a specific acknowledgement of the Veteran's in-service and post-service treatment, lay statements of record, and provided a well-reasoned rationale supporting the overall conclusion based on the totality of the evidence of record. As such, the Board finds that the June 2021 examiner's opinion is are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran's belief that his low back arthritis was caused by his military service. The Veteran is competent to report on matters observed or within his personal knowledge, and is therefore competent to make statements regarding his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of a disease such as arthritis requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive or competent medical opinion as to whether his low back arthritis was incurred in or caused by his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Therefore, any opinion by the Veteran regarding the etiology of his arthritis is not competent evidence. The Board finds the medical opinions of record, provided by medical professionals, to be more probative. Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for low back arthritis. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Taking into consideration the collective VA opinions discussed above and the lack of any medical evidence to the contrary, the Board finds that the evidence does not support finding entitlement to service connection for low back arthritis is warranted on a direct basis. In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for low back arthritis. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.