Citation Nr: 21069411 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-46 448 DATE: November 18, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDING OF FACT The Veteran's lumbar spine disorder did not began during active service, is not otherwise related to an in-service injury or disease and arthritis did not manifest to a compensable degree within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder are not met. 38 U.S.C. §§ 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. Army from January 1958 to December 1960. This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this matter was remanded in June 2017, July 2019, August 2020, January 2021 and in May 2021, largely because the previous etiology opinions provided were inadequate for adjudication. The RO has been directed to provide an etiology opinion that acknowledges the Veteran's statement that he injured his back during a parachute accident in service, as well as, determine whether that back injury is etiologically related to his current back disability. A new examination was conducted in July 2021. In August 2021, the RO issued a Supplemental Statement of the Case again denying service connection for the Veteran's claimed lumbar spine disorder. The Board therefore finds that there has been substantial compliance with its May 2021 remand. Stegall v. West, 11 Vet. App. 268 (1998). In May 2019, the Veteran testified before a Veterans Law Judge. A transcript of the hearing is available in the record. In March 2021, the Board informed the Veteran that the Veteran Law Judge who conducted the May 2019 hearing had retired and informed the Veteran that he had a right to request another optional Board hearing. The March 2021 letter also stated that if the Veteran did not respond within 30 days, the Board will assume that he did not want another hearing and will proceed accordingly. he Veteran did not respond to the March 2021 letter within 30 days of that letter. Therefore, the matter now returns to the Board for further appellate review. Service Connection Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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, are subject to presumptive service connection if manifest 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a lumbar spine disorder is denied. The Veteran contends that his current lumbar spine disorder stems from a parachute accident in service. See March 1991 Statement in Support of Claim. The Veteran's service treatment records are silent to any complaints, treatments or diagnosis of a back injury. However, in the August 2020 Board decision, the examiner was instructed to accept for purposes of the opinion that the parachute incident the Veteran stated did in fact occur. The Board has first considered whether arthritis is warranted on a presumptive basis. The earliest post-service diagnosis of degenerative disc disease of the lumbar spine was in 1999. Consequently, presumptive service connection, to include on the basis of continuity of symptomatology, for lumbar spine arthritis is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct service connection, a July 2013 VA examiner opined that the Veteran's claimed back condition is less likely as not caused by, or a result of, or aggravated by parachuting during service. The examiner explained that there were no objective findings in the Veteran's service medical records indicating any reported injury due to parachute jumping and no compliant, evaluation, diagnosis, or treatment for any back related condition. There are also no other medical records available to confirm the Veteran's report of evaluation and hospitalization for back pain in 1962 and 1970 respectively. The examiner concluded that the noted degenerative disc disease in the clinical records since 2000, about four decades after separation from service, is most likely consistent with natural aging and not due to military service. As previously mentioned, this opinion was previously deemed inadequate for adjudicative purposes by the Board's decision and is of low probative value. In December 2019, the Veteran was afforded another VA examination. The examiner opined that the claimed back injury was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that he reviewed the Veteran's cervical spine Disability Benefits Questionnaire (DBQ) report, to which he was service connected for due to his parachute accident and acknowledged that the total number of parachute jumps the Veteran performed was unknown. The examiner also noted that the Veteran's medical records are silent for any injuries involving parachute jumps during service. The examiner further noted that there were no findings of back injuries during service. Therefore, it is less likely any current degenerative disc disease symptoms are due to military service, nor due to parachuting. As previously mentioned, this opinion was previously deemed inadequate for adjudicative purposes by the Board's decision and is of low probative value. In November 2020, the Veteran was afforded another VA examination. The examiner opined that the claimed back injury was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran began getting treated for his back in December 2007 and was treated with non-steroidal anti-inflammatory drugs (NSAIDs) and opioids. He was seen, at a minimum, every six months for his back and is currently being treated with NSAIDs since 2007. The examiner emphasized that there is no treatment for a lumbar condition until 2007, thus his back disability is less likely linked to his parachute accident. As previously mentioned, this opinion was previously deemed inadequate for adjudicative purposes by the Board's decision and is of low probative value. In February 2021, the Veteran was afforded another VA examination. The examiner opined that the claimed back injury was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that no chronic diagnosis is made for a lumbar spine condition while on active duty and the Veteran's symptoms are subjective only, therefore a nexus has not been established. The examiner noted that the lay statements and buddy statements regarding the Veteran's symptoms, including the Veteran's contentions regarding an undocumented parachute accident during military service, the Veteran's brother's lay statement in 1991 that when the Veteran left the Army in 1960 he experienced back pain, and the Veteran's lay contention that he suffered an un-documented lower back injury during his first parachute jump in July 1958 when he landed on a fence, were all considered. However, the examiner noted that the available medical records do not note medical evaluations, treatment, or diagnosis for a lumbar spine condition, including a lumbosacral sprain, while on active duty. The examiner noted that the Veteran's symptoms are self-report only and are not confirmed in the claims file, that the separation examination dated November 1960 did not note a lumbar condition and that the document dated May 2019 noted the Veteran reported he did not receive any treatment after his first parachute jump. The examiner noted that lumbar x-ray dated July 2005 noted "degenerative changes L4-5." The examiner noted that the Veteran's medical records do not note any medical evaluations, treatment, or diagnosis for any lumbar spine conditions while on active duty and that there is no objective medical evidence noted in the available medical records showing a link between the Veteran's current lumbar spine condition and the Veteran's time in military service. Therefore, a nexus has not been established. As previously mentioned, this opinion was previously deemed inadequate for adjudicative purposes by the Board's decisions and are of low probative value. Recently, in July 2021, the Veteran was afforded a VA examination for his lumbar spine disorder. The examiner opined that the claimed back injury was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that although the VA grants latitude with respect to the Veteran' s weight-bearing joint and spinal injuries related to his parachute jumps, there is no evidence of a back injury related to jumps, or otherwise, during service. The examiner explains that the Veteran's report of an injury during his first jump is noted but it is unlikely a significant injury occurred and that his separation examination is negative for back conditions. The examiner explains that these examinations are notably thorough and include a history, physical and Veteran-answered Report of Medical History, which was negative for back conditions. The examiner noted that it is highly unlikely a significant back injury would have gone unnoted or unreported. Furthermore, the examiner noted that it is specifically noted that the Veteran denied any sequelae from any previous disease or injury and that this would have included the motor vehicle accident the Veteran suffered while in service which did not involve a back injury and the claimed jump injury. The July 2021 VA examiner noted there is no evidence of bone trauma to the lower spine on imaging in 1999 and 2005 and that the Veteran has been diagnosed with degenerative disc disease, degenerative joint disease, intervertebral disc syndrome and right sciatic radiculopathy. The examiner explains that these diseases are naturally occurring conditions related to normal wear and tear with aging and that greater than 50 percent of men 50 and older will have degenerative spine disease, the prevalence rising significantly per decade thereafter. The examiner noted that it was age-appropriate at the time of diagnosis in 1999 and that the 1999 records are the first evidence of a back condition, 39 years post-service. The examiner noted that any injury predisposing the Veteran to naturally occurring degenerative joint disease, in the absence of bone trauma, would have manifest at that time or proximate to it. The examiner noted that it is highly unlikely an individual could have gone such a span without manifestations requiring evaluation and/or treatment. The examiner further noted that the buddy statement 31 years later is acknowledged but does not substantiate the Veteran's claim but that the Veteran's claim of onset during service is not supported by the medical evidence, including the separation examination. The examiner noted that it is highly unlikely a significant injury would have gone unnoted at that time or at least by separation. Therefore, it is less likely than not (unlikely) the Veteran's naturally occurring degenerative spine disease is due to or incurred in events in service, including the claimed injury at the time of his first parachute landing and that any injury occurring at that time would have been compounded by further jumps and the rigors of military training/physical training and would have been readily apparent. Furthermore, the examiner noted that the fact that the Veteran completed enough jumps to gain the parachute badge is evidence against a significant injury. The examiner concluded that it is less likely than not that the Veterans currently diagnosed degenerative spine disease and its ramifications are due to or incurred in events in service, including conceded hard landings during parachute jumps and it is more likely than not that these conditions are naturally occurring and were age-appropriate at the time of onset. Thus, the July 2021 VA examiner considered all evidence of record after thorough review of the claims file, including lay statements properly weighed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). Furthermore, the medical examination report contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301. Therefore, the medical opinion is of great probative value. There is no contrary opinion of record. The Board acknowledges the statements of the Veteran as to the existence and etiology of his claimed lumbar spine disorder and acknowledges that the Veteran is competent to give evidence about what he experienced. For example, he is competent to discuss the fact that he experiences symptoms of pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report his current symptoms, as a lay person he does not have the education, training, or experience to diagnose or opine as to the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran's statements are of low probative value. Furthermore, although it is conceded that the Veteran had a parachute injury while in service, there is no record of complaints of a back pain until 1999, more than 30 years after separation from service. The Veteran's reports of him being treated for his back pain in 1962 and 1970 were not found in his post-service treatment records. Thus, even if his back pain was undocumented in service, as the Veteran suggested, it would not have been undocumented after service, if reported. Therefore, the Veteran's contentions are without merit. Thus, the Board concludes that the preponderance of the evidence is against finding that the Veteran meets the criteria for service connection for lumbar spine disorder. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.