Citation Nr: 21068605 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 14-24 297A DATE: November 10, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran's degenerative arthritis of the lumbar spine first manifested many years after service and has not otherwise been related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from March 1970 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in February 2015. A transcript of the hearing has been associated with the record. By way of history, this claim was previously before the Board in August 2016, at which time it was remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. Subsequently, the Board denied the Veteran's claim for service connection in a January 2019 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Following the appeal, the Veteran and VA filed a Joint Motion for Remand (JMR) in July 2019, arguing that the Board had erred in denying the claim and that the claim should be remanded to the Board for readjudication. The Court granted the JMR in August 2019. The claim then returned to the Board in November 2019, at which time it was again remanded to the AOJ for development, to include obtaining an addendum medical opinion. The Board determined that an additional remand was necessary in June 2021. In consideration of this appeal, the Board finds that there has been substantial compliance with its June 2021 remand directives, and as such, will proceed with appellate review. Entitlement to service connection for a low back disability is denied. The Veteran contends that his current claimed back disability warrants service connection. Specifically, the Veteran contends that his back disability began during his active-duty service when he fell down a ladder. 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 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 (typically one year); 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 Veteran has a current diagnosis of degenerative arthritis of the spine. Therefore, a current disability has been established. The Veteran has stated that his low back condition began while in service due to a fall down a ladder during a fire drill onboard his ship. Furthermore, the Veteran's service treatment records (STRs) note that he had treatment for a back injury in service. Accordingly, an in-service injury has been shown. Therefore, the question remains whether the currently diagnosed disability is related to that in-service back injury and pain. Following several attempts at development and remands by both the Board and the United States Court of Appeals for Veterans' Claims (CAVC), an addendum VA opinion was obtained in June 2021. The June 2021 VA examiner stated "I have thoroughly reviewed VBMS and CPRS records including but not limited to VBA remands, videoconference hearing transcript, proffered opinions, and Buddy/Lay statements. After full and careful consideration of the available records it is my medical conclusion that the knee condition for which the Veteran is service connected is the presence of a scar due to a laceration/ abrasion sustained when he touched the knee with a grinder. This is a skin condition and would not lead to long term disability or pathology of the joint proper. It would not lead to weakness or instability of the knee. I do note that the Veteran's fall down a ladder did occur within three days following the repair of this laceration. It is plausible that there was some contribution by the pain from the recent laceration to his fall during the fire drill. Assuming that the knee condition did contribute to some degree to the fall, the next question is whether the Veteran's back condition is related to the incident of the fall. Note that the Veteran reported back problems on the preinduction report of medical examination. The Veteran was seen on the day of the incident and treated conservatively with no subsequent complaints of back or knee problems for the remaining three years of active service. Both back and knee conditions were minor, acute, and self-limited. They were not chronic disabilities. The Veteran was engaged in physically demanding labor when he sustained a back injury in 1990 and when he rolled an asphalt truck in 1986. The buddy statement provided by his wife indicates that he had no significant knee or back disability in the late seventies. Therefore, there is no evidence of chronicity or consistency of back or knee disability to serve as a nexus between the documented fall and contusion and any current back disability. It is my medical conclusion that the Veteran's current low back disability was not incurred in service. It is not related to the fall from the ladder. It is not proximately due to or the result of the service-connected left knee condition. This opinion includes consideration of the chronic effects of a knee disability and a consideration of the intermediary event of the fall from the ladder. It is my medical conclusion that the Veteran's current low back condition was not incurred while on active duty. It was not caused by, secondary to or aggravated beyond its normal progression by either the fall in 1971 or the presence of his service-connected knee condition (laceration anterior knee) The knee laceration did not result in any intra-articular knee condition and would have no impact on the anatomically distant and distinct lumbar vertebral column." Upon review of the record, the Board finds that service connection for a back condition is not warranted. The Board finds the June 2021 examiner's medical opinion to be highly probative because the examiner provided an adequate rationale based on the relevant evidence of record. The examiner noted the Veteran's competent lay statements of record regarding his in-service back injury, and provided an adequate rationale concluding that the Veteran's back condition was likely due to other factors based on on the medical evidence of record. To the extent that the Veteran believes that his back condition is linked to his active-duty service, the Board notes that he is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question regarding the etiology of his back condition is an issue of causation of a medical condition, which requires a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, his lay statements alone are not sufficient to establish the required nexus in this case. The Board must then rely on the available and probative medical evidence, which have found no nexus between the Veteran's back condition and his military service. Finally, service connection may also be granted for chronic disabilities, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service or based on continuity of symptoms when first noted in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a), to include arthritis. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran contends that he has had pain since service. However, there is no evidence that symptoms of the Veteran's degenerative arthritis of the spine were noted in service, to include at his 1974 separation exam, at which time his spine was evaluated, and only a remote low back strain was noted. Nor is there evidence of arthritis having been diagnosed within one year after service, let alone to a compensable degree. See 38 C.F.R. § 3.309. As such, presumptive service connection is not warranted for this chronic disability. In sum, the evidence preponderates against the claim for service connection for a low back disability. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for a back disability must be denied. 38 C.F.R. § 3.303. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.