Citation Nr: 21071512 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-18 782 DATE: November 30, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of a lumbar spine disability, to include degenerative joint disease. 2. The preponderance of the competent and credible evidence of record is against finding that the Veteran's current lumbar spine disability was incurred in or otherwise related to service, to include the left hip injury in service. 3. Symptoms of degenerative joint disease have not been continuous since service, and degenerative joint disease of the lumbar spine did not manifest to a compensable degree in the year following service. CONCLUSION OF LAW The criteria to establish service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 1970 to September 1970. Although his service is reflected as active duty for training on his DD 214, as the Veteran has since been granted service connection based on that period of service, the service is now deemed active service, and not active duty for training. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a travel hearing before a Veterans Law Judge (VLJ) no longer at the Board; a transcript of that hearing is of record. In October 2021, the Veteran was offered the opportunity to testify at a hearing before another VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Because the Veteran did not respond within 30 days of the date of the letter, the Board will proceed with adjudication. In October 2018, the Board remanded the claim for further development. The case has now returned for further appellate consideration. Service Connection Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Degenerative joint disease is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disease in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic' disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Back Disability The Veteran asserts that his lumbar spine disability is the result of an in-service injury to his left hip in September 1970, and that he has continued to suffer back pain and chronic disability since that time. During his April 2017 Travel Board hearing, the Veteran reiterated his contention that his lumbar spine disability was due to his left hip injury in service. He stated that he injured his left hip on an obstacle course, that he continued to experience pain and back problems to the present day, and that he would self-medicate as needed and occasionally see a chiropractor. He reported that within a year of service separation he continued to have back problems, told his Reserves first sergeant who wanted him to go to the hospital, but he declined and went to his local doctor who gave him morphine and he rested for a week. He testified that in 1992, he had a back x-ray for a new job, and was told he had a very old injury to the back. He reported that he experienced severe back spasms one time while pushing his children on a sled. He also reported that past medical records are no longer available. His wife testified that she met and married the Veteran a few years after service, that he has always had back problems, and had to assist him getting home when his back spasmed during the sledding incident. The Veteran has a currently diagnosed lumbar spine disability, to include degenerative joint disease with spondylolisthesis at L4-5 level and lumbar spinal stenosis. See e.g., October 2019 VA back (thoracolumbar spine) examination report; July 2019 magnetic resonance imaging (MRI) scan of the lumbar spine. Turning to the service treatment records (STRs), the Board notes that records are negative for complaints or findings of a back disorder. The Veteran's February 1970 entrance examination is normal. In September 1970, he was seen at the orthopedic clinic for complaints of a hip disorder. Physical examination showed a superficial hematoma. He was given a profile limiting his physical activity for 10 days after which he was released from active duty for training with the National Guard. Private medical records from the Cleveland Clinic Family Lorain show that the Veteran was first seen in February 2010 for palpitations. He had recently moved; his past medical history included cervical disc syndrome (multiple problems with neck). Private medical treatment records from D.L.S., MD, dating from March to April 2010 show the Veteran was treated for complaints of low back pain and neck pain which he reported having for about 20 years. The diagnosis was lumbar stenosis, lytic spondylolisthesis, and painful degenerative disk disease of the lumbar spine. On an April 2010 application for Social Security Administration (SSA) Disability benefits, the Veteran reported that his back injury occurred 40 years ago in the military, that he did not get proper treatment, and when he returned to the doctor in 1976, he was told to keep going as long as he could. In May 2010, the Veteran was granted disability benefits for discogenic and degenerative disorders of the back, effective from September 30, 2009. The Veteran was afforded a VA compensation examination of the back in October 2019. During the evaluation, the Veteran indicated that he injured his left hip in 1970 during service and had intermittent low back pain worsened by daily activities. He did not take medications for the pain and had no back pain currently. After examination of the Veteran and review of the claims file, the VA examiner opined that the Veteran's current lumbar spine disability was less likely than not related to service as there was no evidence of a nexus between the Veteran's current lumbar spine disabilities and his military service. The examiner acknowledged the September 1970 treatment record of a left hip injury and explained that it was an acute injury which was self-limiting with no chronic sequelae. The examiner also noted the diagnosis of degenerative joint disease of the lumbar spine with spondylolisthesis at L4-5 level and lumbar spinal stenosis in 2010, 40 years post-service discharge. As aforementioned, degenerative joint disease (arthritis) is a "chronic disease" and as such is subject to presumptive service connection. Here, there is no x-ray evidence of arthritis of the lumbar spine that manifested to a degree of 10 percent within one year of separation from service. Therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.309(a) is not warranted. The Board next finds that the weight of the evidence demonstrates that symptoms of lumbar spine arthritis were not chronic in service or continuous since service separation. There were no back complaints in service, and the left hip injury diagnosed in service was acute in nature as described by the VA examiner. The earliest symptoms of lumbar back pain in the medical records are not shown until three decades after service. See March 2010 private medical records and April 2010 SSA application for disability benefits. The Board finds that the contemporaneous medical evidence is more probative than any lay reports of continuing symptoms since service. Moreover, to the extent the Veteran suggests that symptoms of the currently diagnosed lumbar spine disability were continuous since service, such assertions are internally inconsistent and not credible. His STRs are silent for lumbar spine complaints, treatment, or diagnosis. A February 2010 initial medical treatment records does not show a history of low back pain or disability, although those record mention other disorders as well as cervical neck pain. When seen for medical treatment in March 2010, the Veteran reported a history of low back pain for "about 20 years" which would place the lumbar spine disability as occurring approximately two decades after service. However, one month later, on his April 2010 SSA claim, he related his back pain to his inservice hip injury 40 years earlier. Furthermore, on his April 2010 SSA claim, the Veteran reported that he "returned" to the doctor in 1976, implying there had been no treatment for a hip or back disability between service separation in 1970 and 1976. The mere absence of medical records does not contradict a veteran's statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). For these reasons, the Board finds that the criteria for presumptive service connection under 38 C.F.R. § 3.303 (b) based on either "chronic" symptoms in service or "continuous" symptoms since service have not been met. There is also no competent evidence of a nexus between the Veteran's current back disability and service. The Board finds the VA opinion provided in October 2019 to be competent and highly probative. The opinion is supported by adequate rationale based on a review of the claims file, examination of the Veteran; it is factually accurate and contains sound reasoning. Notably, no medical professional has related the Veteran's current lumbar spine disability to service or to the left hip injury in service. The Board has considered the Veteran's statement that a physician in 1992 told him that his back was broken, and that the injury had occurred many years earlier. However, such a statement would be speculative without review of the Veteran's medical records, to include service treatment records, and does not serve to provide competent evidence of a nexus to the left hip injury in service. (Continued on the next page) While the Veteran and his spouse, as lay people, are competent to report observable symptoms such as back pain, they are not competent to relate the lumbar spine disability, a medically complex musculoskeletal disorder, to his military service or injury therein, as they are not shown to possess the requisite medical knowledge, training, or experience to do so. In sum, the weight of the competent and credible evidence demonstrates no etiological relationship between the Veteran's diagnosed lumbar spine disability and his active duty service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a lumbar spine disability, on direct and presumptive bases, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.