Citation Nr: 21071278 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-26 800 DATE: November 30, 2021 ORDER Service connection for a back disorder is denied. FINDING OF FACT A back disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year of discharge from active duty. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 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 June 1961 to June 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2014 by a Department of Veterans Affairs (VA) Regional Office. In August 2019, the Veteran and his brother testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2019, October 2020, January 2021, June 2021, and August 2021, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for a back disorder. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. 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 v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has a current back disorder related to parachute jumps during service, to include an incident when he injured his back during an accident while parachuting. He and his brother also report that he has experienced back pain since his separation from service. Thus, the Veteran claims that service connection for a back disorder is warranted. As an initial matter, the Board finds the evidence of record reflects that the Veteran has a current back disorder. Specifically, November 2008 and March 2021 VA examinations and August 2019 VA treatment records reflect diagnoses of degenerative lumbar spine displacement of L4 and L5, intervertebral disc space loss with endplate marginal osteophytosis, facet arthrosis, multilevel spondylosis, and degenerative arthritis. Further, while the Veteran's service treatment records (STRs) are negative for any complaints, treatment, or diagnosis referable to a back disorder, his multiple parachute jumps have been acknowledged based on his participation in airborne training and the receipt of the Parachutist Badge. Thus, the remaining inquiry is whether the Veteran's current back disorder is related to his military service, to include his in-service parachute jumps. In this regard, a June 1987 private treatment record reflects the Veteran's report that he had trouble bending at times, with the instant episode triggered after picking up a tool pouch. In this regard, he indicated that such had occurred a few times in the past with episodes occurring once a year. Mild osteoarthritis at L4/L5 and decreased disc space at L4/L5 and L5/S1 were diagnosed. In October/ November 2006, the Veteran was hospitalized for complaints found to be consistent with acute transverse myelitis. Additionally, while VA examiners opined that the Veteran's back disorder was unrelated to his military service, to include his in-service parachute jumps, in November 2008, April 2020, June 2020, August 2020, October 2020, March 2021, and June 2021, the Board previously found that such opinions were inadequate to adjudicate the claim as the examiners did not consider the Veteran's and his brother's statements that he has experienced back pain since service, or based such on an inaccurate factual premise. Consequently, the Board most recently remanded the claim in August 2021 in order to obtain an addendum opinion that accurately considered all relevant evidence of record, to include the lay statements offered by the Veteran and his brother. In August 2021, a VA examiner reviewed the record, to include the Veteran's STRs, post-service treatment records, prior opinions, and his and his brother's statements, and opined that his back disorder is less likely than not related to his military service, to include his in-service parachute jumps. In this regard, the examiner noted that the Veteran's STRs were negative for any complaints, treatment, or diagnosis of a back disorder, and denied currently or previously experiencing swollen or painful joints on separation in May 1964. He also took specific note of the June 1987 and October/November 2006 treatment records, the Veteran's report of working as an air condition/refrigerator/appliance technician after service and X-ray findings of degenerative changes of the lumbar spine with minimal posterior displacement of the L4 and L5 at the November 2008 VA examination, and his report that he had back pain for 50 years and multilevel spondylosis of the lumbar spine noted on X-ray in July 2019. The examiner further noted the Veteran's currently diagnosed back disorders and provided an explanation based on medical literature of each diagnosis. However, even in consideration of the Veteran's and his brother's lay statements, he found that there was no record of a chronic back condition in service or directly after service. The examiner also explained that the June 1987 treatment record showed only mild osteoarthritis at L4/L5 and decreased disc space at L4/L5 and, if the Veteran had incurred a significant injury during parachuting over 20 years previously, one would have expected to see some form of posttraumatic arthritis and/or advanced arthritis of the spine, which was not present. Rather, the examiner found that the Veteran's back disorder most often occurs as a chronic process from wear and tear and is part of the normal aging process. The Board affords great probative value to the August 2021 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the Veteran's and his brother's statements, his relevant medical history, and pertinent medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In this regard, the Board notes that, in November 2021, the Veteran argued that a physical examination, as a opposed to a medical opinion based on a review of the record, would be more beneficial in addressing his claim as such would allow the examiner to consider the severity of his disorder, to include muscle spasms. However, the Board finds such argument to be without merit as the current nature of the Veteran's back disorder is documented in contemporaneous treatment records and, most recently, at a March 2021 VA examination. Furthermore, the current matter at issue pertains to the etiology of such disorder, as opposed to the severity of such disorder. Consequently, as the remainder of the evidence of record adequately addresses the current nature of the Veteran's back disorder, the Board finds that an examination is unnecessary and his argument is without merit. The Board further observes that, in August 2019, Dr. I.S., who indicated that he had not treated the Veteran, but reviewed his available medical records, opined that the initial impact from the Veteran's multiple jumps initiated early deceleration of deterioration of his joints, including his lumbar spine, which the evidence points towards an ongoing chronic situation. In this regard, he reported that it was highly probable that initial multiple jumps in a person who may have been predisposed to the onset of arthritis augmented and overall accelerated his degenerative disease. Thus, Dr. I.S. concluded that previous exposure to direct trauma to axial bone, with a predisposition of arthritis and routine physical work, could usually manifest in the present and ongoing situation the Veteran found himself in. However, as Dr. I.S. admits that he had not reviewed all potentially relevant records and, further, does not describe why he believes the Veteran was predisposed to arthritis, which seems to be part of the basis for his opinion, the Board affords such opinion no probative weight. Id. The Board also considered the Veteran's assertions as to the etiology of his back disorder; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, determining the etiology of the Veteran's diagnosed back disorders, which include degenerative disc disease and arthritis, requires knowledge of the musculoskeletal system, to include the spine, and the impact parachute jumps and hard landings have on it. Thus, such matter may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of his back disorder is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that arthritis of the back manifested to a compensable degree within one year of the Veteran's separation from active duty. In this regard, his STRs are negative for any complaints, treatment, or diagnosis of a back disorder, his spine was normal upon examination at separation in May 1964, and the first indication of arthritis was noted in June 1987, which was approximately 23 years after the Veteran's separation from service and such was described as "mild" at the time. Moreover, while the Veteran and his brother reported a continuity of back symptomatology since service, the Board finds that such statements are contradicted by the contemporaneous evidence, to include the Veteran's own statements. Specifically, at the time of his separation from service in May 1964, he denied previously or currently experiencing swollen or painful joints; arthritis or rheumatism; and bone, joint, or other deformity. Furthermore, when receiving treatment in June 1987, the Veteran reported that his difficulty with bending occurred only a "few times" in the past. Cucuras v. Sec'y of Health and Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (finding no error in fact-finder's decision to give more weight contemporaneous medical records generated for treatment purposes than to contrary lay testimony, reasoning that "[m]edical records, in general, warrant consideration as trustworthy evidence, and that "oral testimony in conflict with contemporaneous documentary evidence deserves little weight"); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Consequently, presumptive service connection for arthritis of the back, to include on the basis of continuity of symptomatology, is not warranted. Therefore, based on the foregoing, the Board finds a back disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year of discharge from active duty. Thus, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a back disorder. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. 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.