Citation Nr: 21068152 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 19-28 899 DATE: November 9, 2021 ORDER Entitlement to service connection for degenerative arthritis of the spine is denied. FINDING OF FACT The Veteran's degenerative arthritis of the spine did not originate in service, did not manifest to a compensable degree within one year of discharge, and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of the spine have not been met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1982 to July 1986. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office. In April 2020, the Board denied service connection for degenerative arthritis of the spine. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted a Joint Motion for Remand, vacating the Board's April 2020 decision and remanding the matter for readjudication. The Court found that the Board erroneously relied on an inadequate VA medical opinion dated in October 2017, in which the examiner failed to address the Veteran's lay statements made during the examination. The Court remanded the case back to the Board for further development in accordance with its determinations. In June 2021, the Board remanded the appeal to obtain another medical opinion. The Veteran was afforded the requested examination in July 2021. Therefore, VA has fulfilled its obligation to assist the Veteran in developing the claim on appeal and has substantially complied with the Board's June 2021 remand directives Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). To establish service connection under this provision, there must be evidence of a chronic disease shown as such in service (or within an applicable presumptive period under C.F.R. § 3.307) and subsequent manifestations of the same chronic disease. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for degenerative arthritis of the spine is denied. The Veteran has set forth several arguments regarding his claim for service connection. He contends that his degenerative arthritis of the spine is due to an injury during boot camp in 1982. Additionally, the Veteran further contends that the most recent medical evaluation on July 16, 2021 is "wholly inadequate." The Veteran further indicates that the medical examiner lacks competence to render an appropriate finding of service connection because of his identified specialty in OB/GYN. Further, the Veteran states that the examiner did not afford due consideration to the appellant's competent lay evidence regarding the continuity of symptoms. The Veteran's service treatment records (STRs) indicate that in October 1981, the Veteran underwent an enlistment medical examination. The results indicate that the Veteran's back and musculoskeletal system were normal. The STRs show treatment for back injury during boot camp in 1982. The Veteran's STRs indicate that he was seen in July 1982 for severe back pain from the thoracic area to the lumbar area, which had lasted for three days. The Veteran had limited range of motion, pain on palpation, and back spasms. He was prescribed limited duty for two days and warm soaks for his back. Two days after this note, the Veteran was seen for recurring back pain. This time it was noted that he had full range of motion and pain on palpation. He was assessed to have a back strain. There were no follow up treatment records. The Veteran's separation examination in 1986 was silent for any back complaints or findings. The examinations include a self-reported questionnaire by the Veteran. Clinical evaluation in June 1986 identified the spine and other musculoskeletal as normal despite back pain from the thoracic area to lumbar area in July 1982. After leaving the military, the Veteran had a long work history as a UPS driver. During his tenure with UPS, the Veteran was involved in a work-related motor vehicle accident in 1995 from which the Veteran reported back pain. A March 1995 private MRI report of the lumbar spine was accompanied by a diagnosis of back pain, rule out herniated disc. Private treatment records for March 2015 include an occupational therapy progress note for low back pain. The note states that the Veteran reported having low back pain since 1995 when he was involved in a motor vehicle accident. The Veteran reported that a vehicle travelling 55 miles per hour broadsided his semitruck and his upper body went over to the right side as his lower body remained in his seat. The Veteran returned to his job at UPS Freight as a truck driver after this accident while continuing to have low back pain. Additionally, the Veteran reported that his job duties at UPS required him to lift up to 175 pounds. VA treatment notes for April 2017 indicate that he was assessed for physical therapy. It was noted that the Veteran had experienced low back pain for years and was diagnosed with a bulging disc in 1995. He reported that he had been in constant pain, which had gotten worse through the years. In October 2017, the Veteran underwent a VA examination for his claim confirming the 2015 diagnosis of degenerative arthritis of the spine. It was also noted that the Veteran was diagnosed with a herniated disc in 1995. The Veteran reported that he injured his back in boot camp in July 1982 and has had pain since. He could not recall how he injured his back. The VA examiner concluded that the Veteran's current disability did not incur in or as a result of the Veteran's service, to include the claimed July 1982 injury, which was acute. The Court found the examiner's October 2017 opinion inadequate for lack of consideration of the Veteran's lay statements and private medical reports by Dr. R.G. A December 2018 letter from Dr. R.G. provided a positive service connection opinion in that the Veteran's back pain "might" be linked to his July 1982 injury. The physician based this opinion off lay statements from the Veteran regarding his injury in basic training. However, the opinion did not consider the 1995 motor vehicle accident. A July 2021 addendum opinion was obtained by the VA. The examiner opined that the 1982 back injury was likely acute and self-limited. The examiner explained that his opinion was supported by the lack of evidence of any back condition during the Veteran's four additional years of military service and negative reporting during his exit separation exam. The examiner concluded that the 1982 back injury claimed by the Veteran clearly resolved and would not cause degenerative arthritis of the spine 30 years later. The July 2021 VA examiner additionally noted that degenerative spine disease is a naturally occurring condition, which was age appropriate at the time of diagnosis. He found that there was no evidence of bony trauma to the spine or any injury predisposing the Veteran to a naturally occurring degenerative spine disease. Also, the VA examiner noted that there is no evidence of chronicity of care even considering the Veteran's statements of ongoing back pain. The examiner noted that despite the motor vehicle accident in 1995, nine years after service, there was no evidence of degenerative spine disease even with back pain symptoms reported by the Veteran. The VA examiner, after review of the claims file and consideration of the Veteran's statements, opined that the earliest signs and symptoms of degenerative spine disease likely occurred around 2014 with a diagnosis in 2015. The July 2021 VA examiner reported with greater than 99% confidence that the Veteran's degenerative arthritis of the spine was less likely than not incurred in service or was caused by the 1982 boot camp injury. The Board first will address whether the July 2021 VA examination is adequate given the representative objections. To the best the Board can discern, the Veteran contends that the July 2021 VA examiner's opinion is inadequate because of the physician's specialty is OB/GYN. The competency of a VA examiner is presumed, absent a showing of some evidence to the contrary. Hilkert v. West, 12 Vet. App. 145 (1999). The presumption is that the VA has properly chosen an examiner who is qualified to provide competent medical evidence in a particular case absent a challenge by the veteran. There is no distinction between generalist and specialist examiners. Francway v. Wilkie, 940 F.3d 1304, 1309 (Fed. Cir. 2019). The presumption of competence requires an appellant to object to an examiner's qualifications before the Board, but the Board cannot ignore facially obvious issues of competence. Fears v. Wilkie, 31 Vet. App. 308, 318 (2019). The presumption of competency is rebutted when a veteran raises the competency issue. Francway, 940 F.3d at 1307. Here, the Board finds the VA examiner was competent and that no further opinion is needed. The VA examiner's specialty in General Practice, Obstetrics and Gynecology, is not on its face evidence calling into question his competence in this case, and the examiner gave no indication that he was not fully competent to opine in this matter. See Wise v. Shinseki, 26 Vet. App. 517, 527 (2014). The Veteran does not contend that the examiner is not a physician. The Veteran does not contend that the physician is not licensed, nor does he contend that the examiner did not undergo the extensive medical training all U.S. doctors undergo in topics such as anatomy and afflictions such as arthritis and trauma. While the examiner, following the standard medical training, chose to specialize in obstetrics and gynecology, the Board fathoms no reason to believe that the examiner left his general medical knowledge behind when doing so. The Veteran has not established that the determination of the etiology of spinal arthritis is so esoteric as to require a specialist in back pathologies. In point of fact, given that there is nothing in the Veteran's medical history to suggest that a specialist is required for an adequate opinion, the examiner's specialization as an OBGYN is irrelevant given the medical training that qualified the examiner to identify himself as a doctor. Moreover, the Board points out that as a gynecologist, the examiner's training would be expected to encompass a patient's general health, again, relying on the intensive medical training all U.S. physicians undergo. In short, the Board finds the Veteran's objections to the competency of the examiner to have no evidentiary foundation. The Veteran has not requested further development regarding the examiner's qualifications, in which a resume or equivalent would be provided. The Veteran's argument, without further support, is not sufficient to warrant remand for a new opinion. Accordingly, the Board finds the July 2021 VA examiner qualified and competent to provide the requested examination report. After a review of the examination report, the Board finds it is adequate to adjudicate the issue on appeal. Therefore, VA has fulfilled its obligation to assist the Veteran in developing the claim on appeal. After review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for degenerative arthritis of the spine. There is no evidence that degenerative arthritis of the spine was present during the Veteran's period of active duty nor manifested to a compensable degree within one year of separation. The Board acknowledges the Veteran's statements of back pain during a boot camp injury in 1982. However, the Veteran does not claim that he received a diagnosis or treatment for degenerative arthritis of the spine during active service, and his separation examination revealed normal evaluations. The earliest indication that he received a diagnosis of degenerative arthritis of the spine, or any related treatment was decades after his discharge from active service in 2014. The Board acknowledges that the Veteran, in his lay statements, indicated that he experienced back pain during service. To the extent the Veteran reports experiencing back pain continuously since separation, the Board finds his account lacks credibility as the statements are not supported by the record. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Service treatment records indicate that any back injury was neither chronic nor continuous, but instead completely resolved with treatment. Moreover, at separation the Veteran did not report any back pain when specifically asked about musculoskeletal problems. Medical records are silent as to back pain from 1986 to 1995 when the Veteran had motor vehicle accident while working for UPS. See Curry v. Brown, 7 Vet. App. 59 (1994) (a Veteran's version of events from the past may be of limited credibility and probative value in the absence of medical records showing treatment for the claimed disorder). Thus, the weight of the competent and credible evidence indicates that the Veteran did not manifest either a diagnosis of degenerative arthritis of the spine during service or within one year of separation from service nor continuous of symptoms after separation. See 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). Moreover, there is no probative medical opinion establishing a nexus between either a current diagnosis of degenerative arthritis of the spine and a service-connected disability. In this regard, the Board has considered the opinions provided in March 2015 by the Veteran's private treating providers. Regarding the direct service connection opinion in December 2018, the physician, although indicating a review of the evidence, stated only that the "chronic back pain he has been experiencing might be linked to the reported injury." Dr. R.G. did not provide any rationale for this decision nor link the current disability to the reported in-service injury to support a claim. The Board does not find that these opinions are sufficient to place any of the matters in equipoise. The Board notes that, despite noting an inadequate standard for direct service connection, this opinion is conclusory and not supported by sufficient rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion). Therefore, the Board affords this opinion little probative value. An opinion linking a current diagnosis of degenerative arthritis of the spine to back pain in service over three decades prior requires medical knowledge not capable of lay observation. Meanwhile, the July 2021 examiner fully reviewed the claims and the diagnosis of degenerative arthritis of the spine. The examiner's conclusions, supported by sound rationale, is the most probative evidence. In summary, the July 2021 VA examination report is assigned probative value as it is supported by sound rationale and corroborated by the record in this case. This evidence outweighs the Veteran's reports of continuity of back pain since his July 1982 in-service back treatment and the subsequent 1995 motor vehicle accident. The most probative evidence does not support a finding that the Veteran's back disability is related to service. The medical opinion from the Veteran's private physician is not conclusory and is contradicted by objective medical evidence. As the preponderance of the evidence is unfavorable to the claim, there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. at 53. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Clevenger, Gordanna A. 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.