Citation Nr: 21074275 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-36 064 DATE: December 14, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for stomach ulcer is denied. FINDINGS OF FACT 1. The Veteran did not manifest a lumbar spine disability during service and arthritis was not demonstrated within one year following his service; the preponderance of the evidence establishes that the Veteran's lumbar spine disability diagnosed years post-service is not result of his service nor any incident therein. 2. There has been no demonstration by competent clinical evidence, or competent and credible lay evidence, of a current diagnosis of a stomach ulcer disorder at any time proximate to, or since, the Veteran's claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38U.S.C. §§1101, 1110, 1112, 1113, 1131, 1137, 5103, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for stomach ulcer have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1946 to January 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In November 2020, June 2021, and September 2021, the Board remanded the appeal for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§1110, 1131;38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi,381 F.3d 1163, 1167(Fed. Cir. 2004); see also Caluza v. Brown,7 Vet. App. 498(1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. §3.303(b) for the showing of chronic disease inservice, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a lumbar spine disability. The Veteran contends that he injured his lumbar spine in service due to a softball injury. He asserts that he continued to have problems with his back after the injury. Service treatment records are negative for any lumbar spine condition. Post service, private treatment records show that in October 1992, the Veteran's current problem was a one-year history of pain in his back with radiation down into his right lower extremity. There was 30 percent decreased range of motion of the lumbar spine. X-rays of the lumbar spine revealed narrowing at L5-S1 associated with some spondylitic changes. Treatment records dated January 1995 and August 2008 show containing complaints of low back pain. Since there are no treatment records prior to 1992, the evidence is unfavorable to a finding that lumbar spine disability was manifested to the required degree or became chronic within one year following the Veteran's 1948 service discharge. In January 2021, the Veteran was provided a VA examination in connection with this claim. The diagnosis was lumbosacral strain. The examiner opined that the Veteran's current spine condition was less likely than not incurred in or had onset in service or was otherwise etiologically related to his active military service, to include due to the claimed softball injury in April 1947 while service aboard USS Besugo. The rationale was that there was no medical evidence that the Veteran was treated for complaints of lumbar spine problems during service or one year after service. He was seen many years after service in 2015 for complaints of low back pain and diagnosed with chronic low back pain. In its June 2021 remand, the Board found that the VA medical opinions of record were inadequate because the examiner's rationale was not sufficient as it was primarily based on the lack of treatment records or insufficient documentation recording the Veteran's complaints or diagnosis during service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In July 2021, another VA examiner provided an opinion that the Veteran's lumbar spine condition was less likely than not incurred in or caused by service. The examiner noted that the Veteran's service treatment records were silent fora chronic back condition manifesting during active duty. The examiner further stated that there was no objective evidence that the condition originated due to the claimed softball injury, and the claims file supported a diagnosis of disk degenerative at L4-5 with asymmetric collapse to the left in 2008. However, the examiner provided no explanation as to the significance of the 2008 treatment record, i.e., how this evidence disproves a nexus to service. The examiner also failed to address a much earlier diagnosis of degenerative disc disease, L5-S1, with some evidence of right sacroiliac nerve root radiculopathy in October 1992. Pursuant to the Board's September 2021 remand, another addendum opinion was obtained in October 2021. The examiner also provided an opinion that the Veteran's lumbar spine condition was less likely than not incurred in or caused by service. The examiner specifically noted the Veteran's current lumbar degenerative disc disease with history of herniated disc in 1992 was less likely than not etiologically related to the Veteran's injury of his back from playing softball in 1947. It was noted the Veteran had been seen multiple times for chronic back pain since 1992, but his medical records concerning his lumbar spine had no indication of a past history a severe back injury that could explain the Veteran's back problems in 1992. The examiner added that the Veteran's current lumbar spine condition was more consistent with age-related degenerative changes and related to falls and trauma post service. The Veteran has established that he currently has a lumbar spine disability. However, the service treatment records do not disclose that the Veteran complained of chronic back pain in service. The Veteran does not indicate that he sought medical evaluation or treatment for any back disability within the first year following his service. This evidence is unfavorable to a determination that lumbar spine arthritis was manifested at all during the one-year presumptive period. Furthermore, the VA opinion provided in October 2021 is entirely unfavorable to the claim. This opinion explains that the lack of complaints of lumbar spine symptoms prior to 1992 was inconsistent with an onset of that disability in service. The VA opinion includes specific discussion of the clinical facts of this case. The VA opinion sets forth the rationale underlying the conclusion. The VA opinion is of great weight and persuasive value. The Board acknowledges that the Veteran is competent to provide lay observations that he had back pain in service and that he had back pain after service. However, as a lay individual, the Veteran is not competent to assign a medical diagnosis of a chronic lumbar spine disability during his service, and he is not competent to make a medical determination that lumbar spine pain after service was a continuation of the same pathology that caused lumbar spine pain in service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (2007); Buchanan v. Nicholson,451 F.3d 1331(Fed. Cir. 2006). Further, the Board finds that the Veteran is less than credible with regard to his statements as to onset of back pain symptomatology inservice. In the October 1992 private treatment records, he reported a one-year history of back pain. This report is not consistent with the history provided during the Board hearing where he testified that he has experienced back pain since a softball injury in service. See Rucker v. Brown,10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board acknowledges that the absence of any corroborating medical evidence supporting the Veteran's assertions, in and of itself, does not render his statements incredible, but that such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). However, the Veteran's statements regarding the onset of his back pain, are inconsistent with his other statement in the record, and therefore they are less than credible. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). The preponderance of the most persuasive evidence is against the claim. There is no reasonable doubt which may be resolved in the Veteran's favor. 38 U.S.C. § 5107(b). As such, the claim for service connection for a lumbar spine disability must be denied. 2. Entitlement to service connection for stomach ulcer. The presence of stomach ulcer is not shown proximate to, or during, the period on appeal. A current disability is generally shown by evidence after the claim is submitted or shortly before. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement a current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). The Veteran's claim was received in July 2015. The record contains post-service VA and private treatment records dating back to the 1990s. Since there is no confirmed diagnosis of stomach ulcer disorder, the Board cannot conclude that any such disorder is currently present. In this regard, the Veteran has not been shown to have the requisite knowledge to render a diagnosis of stomach ulcer, and therefore, his statements are not competent evidence to establish a medical diagnosis in this case. While the Veteran reports that the onset of his gastrointestinal problems was in service and he had these problems since that time, a review of his VA and private treatment records only shows a history of peptic ulcer disease in April 2001. Furthermore, in January 2021, the Veteran underwent a VA esophageal conditions examination, which revealed a diagnosis of gastroesophageal reflux disease (GERD), but no ulcer disorder was identified or diagnosed. Concerning this, the Board notes that service connection for GERD has already been established effective July 21, 2015 by an October 2021 rating decision. Because entitlement to service connection requires the presence of a current disability, the Board finds that service connection for stomach ulcer has not been established. See Brammer v. Derwinski, 3 Vet. App. 223 (1992) (indicating that service connection presupposes a current diagnosis of the condition claimed). Thus, service connection for stomach ulcer is not warranted. The Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.