Citation Nr: 21075236 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-38 348A DATE: December 17, 2021 ORDER Entitlement to service connection for a low back condition is denied. FINDING OF FACT The competent medical evidence does not demonstrate that the Veteran's low back condition was incurred in service or is otherwise attributable to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to October 1968. This matter was last before the Board in August 2021, whereupon it was remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of an October 2021 supplemental statement of the case continuing the denial of the claim, the case was returned to the Board for its adjudication. As a reminder, the Veteran testified at a January 2021 hearing before the undersigned Veteran Law Judge. The Board also reiterates that this case will be adjudicated under the legacy appeal framework in light of the procedural background outlined in the prior August 2021 remand. Entitlement to Service Connection for a Low Back Condition The Veteran seeks service connection for a low back condition, which he contends began in service. In the alternative, he acknowledges that, even if the condition began after his discharge, it is nevertheless attributable to his service. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). After a review of the claims file, the Board concludes that, while the Veteran has been diagnosed with degenerative arthritis of the spine as well as spinal stenosis, the preponderance of the evidence is against a determination that a back condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (b), (d). A review of available service treatment records reflects that the Veteran underwent a significant course of treatment for low back pain in service following an initial low back strain in May 1968. In addition, there are other isolated instances of the Veteran having undergone treatment for back pain in service prior to the May 1968 injury, to include documented treatment for low back pain in February 1966 that was not diagnosed and did not require follow-up care. An August 1968 outpatient note shows that a lumbosacral radiographic examination was negative. No chronic back injury was documented on the September 1968 discharge examination, and the Veteran did not report any history of back pain on the corresponding September 1968 Report of Medical History. Post-service, the Veteran has submitted a copy of a September 2018 radiographic examination of the lumbar spine, which revealed moderate multilevel degenerative spondylotic changes throughout the lumbar spine resulting in varying degrees of spinal canal, subarticular, and neural foraminal stenosis. Available VA medical records do not show any specific treatment for a low back condition. During the January 2021 hearing, the Veteran stated that he injured his back in service lifting heavy equipment and did not receive significant treatment through the military. He related that he did not experience any further back pain in service and for a few years after service, until an incident when he blacked out while working on scaffolding and fell on the ground. According to the Veteran, his back pain comes and goes, and he did not formally seek treatment for the condition until 2018. Pursuant to the Board's August 2021 remand instructions, the Veteran was scheduled for a VA spine examination in September 2021, during which he reported that he injured his back in service and was put on light duty for some time while he recovered, after which he was able to complete his service without any further treatment. He also detailed that after service he continued to have episodes of low back pain and underwent a course of treatment with a chiropractor for some time. According to the Veteran, he did not seek treatment again until 2018, when it was revealed that he had multilevel degenerative joint disease and stenosis. He endorsed symptoms of chronic low back pain after standing for longer periods of time or after repeatedly bending. Following a claims file review and an in-person evaluation, the VA examiner set forth diagnoses of degenerative arthritis and spinal stenosis. The August 2021 examiner then opined that it was less likely than not that the Veteran's low back condition was incurred in service or is otherwise attributable to service. In support thereof, the examiner acknowledged that the Veteran did seek treatment for a low back strain in service but noted that a radiographic examination at the time was negative. The examiner also highlighted that the Veteran did not have a subsequent course of treatment for his low back following the encounter for the low back strain. Moreover, the examiner relied on the lack of any documented low back condition on the separation examination and for nearly 50 years post-service until 2018. Finally, the examiner noted that the Veteran's diagnoses are more commonly associated with aging. As the examiner thoroughly reviewed the claims file and supported the opinion by reference to the Veteran's medical history, the Board finds the September 2021 examination and opinion to be highly probative of the ultimate question of whether the low back condition was incurred in or is otherwise attributable to service. Sklar v. Brown, 5 Vet. App. 140 (1993). Upon review of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for a low back condition. The Board acknowledges that the Veteran has asserted that his low back pain manifested in service and has continued since then. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, there is no evidence in the record which indicates that the Veteran is competent through credentials or training to conclude that his currently diagnosed low back condition is attributable to his service. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran's contentions are of limited probative value as to the likelihood of there being a nexus between service and his currently diagnosed degenerative arthritis and spinal stenosis. This is particularly so as compared to the September 2021 VA opinion. In considering the likelihood that the Veteran either incurred a low back disability in service that continued to the present, or that his currently diagnosed low back condition is otherwise attributable to his service, the Board relies on the highly probative opinion of the September 2021 VA examiner, who found it less likely than not that the Veteran's currently diagnosed low back condition was attributable to service. As stated, the examiner noted the lack of a diagnosis of a chronic low back condition in service and the lack of documented treatment following service until 2018, nearly 15 years after his discharge from service. The Board finds this probative opinion to far outweigh the Veteran's general assertions, unsupported as they are with no objective medical evidence. Ultimately, although the Veteran did seek treatment in service for low back symptomatology, the absence of a diagnosis of a chronic condition coupled with the utter lack of potentially supportive evidence following service far outweighs the Veteran's general assertion that he has a low back condition that is attributable to service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As such, the preponderance of the evidence is against the claim of service connection for a low back condition on either a direct basis under 38 C.F.R. § 3.303(a) or based on continuity of symptomatology under 38 C.F.R. § 3.303(b). Furthermore, the lack of any potentially positive and competent evidence also negates the possibility of granting the claim as otherwise attributable to service under 38 C.F.R. § 3.303(d). Consequently, the benefit of the doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.