Citation Nr: 21075178 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-13 417 DATE: December 17, 2021 ORDER Service connection for a lumbar spine disability is denied. FINDING OF FACT There is no probative medical evidence that indicates the Veteran's current lumbar spine disability, to include degenerative disc disease (DDD) and degenerative joint disease (DJD), was incurred in service or diagnosed within the presumptive period after discharge. CONCLUSION OF LAW The criteria to establish service connection for a lumbar spine disability have not been satisfied. 38 U.S.C. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1976 to September 1981. The case was remanded in April 2019 and April 2021 for evidentiary development and for new and addendum medical examinations and opinions. All actions ordered by the remands have been accomplished. The Veteran has appealed the March 2020 denial of his claims of service connection for diabetes mellitus type 2 and for a total disability rating based on individual employability due to service-connected disabilities (TDIU) in the modernized appeal system. Since these dockets cannot be merged, the Board will issue a separate decision for these two claims. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Board must analyze the competency and credibility of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept it means that the person or person who makes the statement is qualified by training, education, an occupation, personal experience, or other reason to make the statement. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable, and the determination is made after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the 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 disability The Veteran contends his current lumbar spine disability was incurred in service due to an injury to his back in either 1978 or July 1980. Service treatment records (STRs) show that the Veteran's December 1975 report of medical history at enlistment indicated he denied recurrent back pain. He also disclosed that he was a sky diver and was therefore a high risk for life insurance. His clinical musculoskeletal evaluation was normal. In July 1980 the Veteran complained of low back and left leg pain for the prior 24 hours after lifting porch bathtubs the night before. The examiner noted the Veteran's spine demonstrated tenderness to touch and that he endorsed radiating pain. The examiner noted no evidence of muscle spasms, sciatic nerve symptomatology, or hip displacement. The examiner diagnosed the Veteran with a low back strain, prescribed pain relief medication, and advised the Veteran he avoid physical training exercise for three days. There are no other complaints, diagnoses, or treatments for a chronic low back injury or residuals from the incident during the remainder of the Veteran's service. His separation examination is not in the record. STRs indicate in September 1979 the Veteran was assessed with exogenous obesity, and in May 1981 the Veteran weighed 231 pounds. The record indicates the Veteran reported to VA and treatment providers that he also injured his back in 1978, and that STRs that confirm the incident are missing. In a December 2002 evaluation pursuant to an application for Social Security Disability Income (SSDI) benefits, the Veteran reported he injured his back in 1978 during field exercises in Fort Richardson, Alaska, during service. He reported he was put on "bed rest" for six weeks; was not given a diagnosis of a condition; that he underwent imaging of his back; and that he did not undergo any physical therapy post-injury. He then reported he had another injury in July 1980. In a June 2003 evaluation pursuant to the same application for SSDI benefits, the Veteran reported he began sky diving in 1972 and that due to a "bad landing" in 1974 he began noticing the onset of back discomfort. He then reported an in-service back injury in either 1977 or 1979 when he lifted a truck transmission, injured his back, was hospitalized for 3-4 weeks, and then was assigned bed rest for 3 weeks. He concluded that he "never recovered" from this incident. He also reported undergoing 19 surgical procedures for his back. As to the Veteran's contention that most of his service medical records are not available, the Board has a heightened duty to assist the Veteran in the development of his claim and to carefully consider the so-called "benefit of the doubt" rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215 at 217-18 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). September 1991 private treatment records indicate the Veteran reported the sudden onset of back pain in August 1991. He reported it was "impossible" for him to perform the heavy lifting of 100 pounds required for his job. When he received a spinal injection a few days later he reported no specific injury in conjunction with the sudden onset of back pain. In November 1991 the Veteran underwent several procedures on his lumbar spine related to a herniated disc and spondylolisthesis, to include laminectomy, bilateral lateral fusion, and bone grafting. In an August 2005 application for non-service-connected pension, the Veteran reported the onset of his then-current back condition, described as lumbar DDD and DJD, as November 1990 with no indications of an in-service injury or that he had undergone any back-related surgeries. He also denied any recent hospitalizations. In an April 2013 statement, the Veteran's friend F.G. recalled that when she met the Veteran in 1986 he could not stand up straight; that he could not bend down to retrieve something on the floor or tie his shoes; and that he slept poorly because he could not find a comfortable position. She also described additional symptomatology upon the Veteran waking and getting out of bed, and that the Veteran used a walker to ambulate. She recalled the Veteran underwent several fusion surgeries and that his back condition had a negative impact on his employment opportunities. In an April 2013 statement, the Veteran provided further details of a motor pool incident in which he was unloading an engine storage and transport tub that fell and pinned him against an old bathtub. He recalled difficulty getting out of bed the following morning; being provided medication and three days bed rest; and subsequent treatment, to include imaging and more assigned bed rest. These lay statements are competent regarding their recollection of events and observations of the Veteran's responses to his back condition, and to establish the presence of observable symptomatology, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). While also presumed credible, these observations are not competent to diagnose the Veteran with a spinal disease nor link any current spinal diagnosis to his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). At a February 2014 VA medical examination for back conditions, the examiner noted the Veteran's STRs notation that he was a sky diver prior to service, and the notations associated with the July 1980 incident. The Veteran reported pain and flareups that were not relieved with pain medication. The examiner diagnosed the Veteran with lumbosacral strain, degenerative arthritis, and intervertebral disc syndrome (IVDS), and opined it was less likely than not that the Veteran's lumbar DJD was proximately caused by the lone episode of back strain during service. This opinion is of minimal probative value because it does not provide the Board with sufficient analysis to consider and weigh the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). The examiner did not provide a fact-based rationale for his opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (medical opinions based on incomplete or inaccurate factual premises are not probative). In addition, the examiner did not discuss the Veteran's lay statements regarding symptomatology since service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). At a December 2019 VA medical examination for back conditions, the examiner diagnosed the Veteran with lumbosacral strain, degenerative arthritis, and IVDS. The Veteran reported he hurt his back when a jeep engine fell on him. He reported undergoing imaging to evaluate the injury; that he was assigned bed rest for six weeks due to the injury; and that he had back pain ever since. He also reported undergoing a spinal fusion procedure in 1982. The Veteran endorsed constant dull, achy pain with intermittent throbbing and stiffness. The examiner opined the Veteran's current lumbar spine disability was less likely than not incurred in service because there was no evidence of a back condition on the Veteran's separation examination. This opinion is also limited in its probative value. It does not provide the Board with sufficient analysis to consider and weigh his opinion. See Stefl v. Nicholson, supra. This rationale is based on an inaccurate factual premise as a copy of the Veteran's separation examination is not in the record. Nieves-Rodriguez v. Peake, supra. In addition, the examiner did not discuss the Veteran's lay statements regarding symptomatology since service. Nieves-Rodriguez v. Peake, supra. In a February 2021 statement, the Veteran's spouse recalled that in the summer of 1980 the Veteran told her he had been injured in the motor pool when an engine fell on him. She recalled that the Veteran had severe difficulty getting out of bed and dressed, and that he was assigned bed rest for three weeks. She also stated that he continued to have back issues since then. These lay statements are competent regarding their recollection of the Veteran's back condition after the 1980 injury, and to establish the presence of observable symptomatology, including frequency. While also presumed credible, these observations are not competent to diagnose the Veteran with a spinal disease nor link any current spinal diagnosis to his service. In June 2021 a VA examiner reviewed the Veteran's claims file, to include all the Veteran's statements regarding the onset, diagnosis, and treatment of symptomatology since his in-service incident. The examiner opined the Veteran's current lumbar spine disability was less likely than not incurred in service because the Veteran's medical records did not indicate a chronic back condition until 1991. Initially the examiner noted that there was no documentation that showed the Veteran underwent a fusion surgical procedure in 1982. The examiner noted that this acute event would have been noted by subsequent physicians, and that absent documentation that this surgery occurred, there was no evidence or convincing timeline to suggest the onset of his current diagnoses in service. The examiner also noted the Veteran's statements that he had undergone a total of seven surgeries was also unlikely and that the Veteran may be referring to minor procedures such as TENS unit placements and injections. The examiner also explained that degenerative spine disease such as DJD and DDD are naturally occurring conditions except due to an acute herniated disc. The examiner noted that confirmation of the Veteran's 1991 fusion surgery did not change his opinion as this surgery occurred over 10 years after service and did not indicate a nexus to his in-service injury. Finally, the examiner noted that the Veteran was evaluated for muscle spasms after his July 1980 incident and that his STRs did not reveal a chronic back condition after the incident. The examiner stated that it was established medical knowledge and practice that muscle spasms did not cause degenerative spine disease. The preponderance of the evidence is against finding service connection for a lumbar spine disability. There is no probative medical evidence that indicates the Veteran's current degenerative spinal diseases were incurred in service or diagnosed within the presumptive period after discharge. The Veteran has continuously asserted throughout the appeal that his current lumbar spine disability is a result of in-service back injury. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, and those of other lay individuals, the Veteran is not competent to offer opinions as to the etiology of his current degenerative spinal disease. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Spinal disease requires specialized training for determinations as to diagnosis and causation and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnoses and their relationship his in-service incident. In addition, the record contains inconsistent statements regarding the onset of symptoms and the diagnosis and treatment of the disease that minimize the probative weight of the Veteran's observations of symptoms. Caluza v. Brown, 7 Vet. App. 498 (1995) (holding the Board has a duty to ascertain the credibility of testimony put before it and may consider multiple factors, including self-interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of witness when weighing credibility.). With regards to his claim of an in-service incident, the record suggests the Veteran endorsed experiencing two back injuries during his service in Fort Richardson, Alaska. The Veteran reported to the Social Security Administration (SSA) that he injured his back during field exercises that resulted in several weeks bed rest in addition to his July 1980 incident. In contrast, the Veteran also reported to SSA and other treatment providers that his July 1980 incident resulted in several weeks bed rest although STRs are available for 1980 and 1981. Therefore, the Veteran's statements regarding the claimed in-service incident itself are inconsistent. Of significance to the Board is that the July 1980 notation did not reference a prior injury to his back, nor that he had a chronic back condition prior to the incident. Although the Veteran's STRs are incomplete, there are subsequent entries in the STRs that occurred in 1980 and 1981 which do not reference a prior medical history of a back injury that required further treatment, or a chronic back condition of any kind. With regards to the Veteran's assertion that he had a continuity of symptoms since service, the Board does not deny the Veteran experienced back pain since service. However, in the Veteran's attempt to provide details of medical procedures for which medical records are no longer available, the Veteran explained that he underwent a spinal fusion surgery in 1982. As noted by the June 2021 VA examiner, such a surgery would be noted by subsequent treatment providers and surgeons given its status as a significant surgical occurrence. Given the absence of any reference to a prior fusion surgery throughout the record, to include the operative report of the 1991 fusion surgery itself or followup treatment, the Veteran's contention that he underwent spinal fusion surgery approximately two years after service is not credible. AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (The absence of a record of an event which would ordinarily have been recorded gives rise to a legitimate negative inference that the event did not occur.). The Veteran's lay statement does not consider the inconsistent timeline of his reported symptomatology to providers during treatment or VA examinations nor any intervening factors for the development of degenerative spinal disease. According to September 1991 treatment records, the Veteran reported the sudden onset of back pain and described it as "impossible" for him to do his job which required heavy lifting of approximately 100 pounds. This acute onset of symptomatology which was eventually diagnosed as a herniated disc is like the exception explained by the June 2021 VA examiner for the early onset of degenerative spinal disease. In his SSDI application noted earlier, the Veteran reported four jobs between 1989 to 2002, all of which required heavy lifting, often of 100 pounds, to support his contention that his back condition was too disabling to work. Although the record indicates that in February 2005 the Veteran reported the onset of back pain after a lifting injury in approximately 1980, he also reported at that same evaluation that he did not recall if that lifting injury resulted in a fracture; that he had intermittent trouble that he managed reasonably well; and that his main back issues began in 1990 that resulted in his fusion surgery. Finally, the Board notes that the June 2021 VA examiner's statement that muscle spasms do not result in degenerative spinal disease to be particularly informative. The fact that the Veteran had a back injury during service does not constitute the only etiology for his current back condition. (continued on next page) The claim for service connection is denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.