Citation Nr: 21075791 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-39 523 DATE: December 21, 2021 ORDER Entitlement to service connection for low back disability is denied. FINDING OF FACT The Veteran's current low back disability was not manifested in service and is not shown to be otherwise causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1999 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2020, September 2020, and March 2021, at which time it was remanded for a further development. A review of the record reveals that there has been substantial compliance with the Board's prior remand directives as to the issue decided below. See Stegall v. West, 11 Vet. App. 265 (1998). Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, and present manifestations of the same chronic disease, or when a chronic disease is not present during service, evidence of continuity of symptomatology. 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). Among the diseases listed for which a nexus will be presumed, include arthritis. See 38 C.F.R. § 3.307, 3.309. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends his current back disability began due to hard landings from jumps in service. The Veteran has a current diagnosis of a degenerative arthritis, degenerative disc disease (DDD) of the lumbar spine, lumbar strain and thoracic scoliosis, as evidenced by the June 2021 VA examination. The Veteran has reported that the onset of his back pain was in 2002, after a hard landing in a helicopter. He stated the pain eventually improved but it would recur periodically and he ignored the symptoms. He alleges at the time of separation from service his pain was constant to a low level. He claims he mentioned his back pain but did not have treatment at the time. See February 2020 VA examination. Service treatment records (STRs) show that back complaints were not documented during active duty. The May 2004 Report of Medical Examination specifically noted problems with his lower extremities, feet and skin, while the spine was marked normal and no symptoms were indicated as present. He noted he had passive stiffness in his knees, but there was no mention of any back pain. Significantly, a medical note expressly denied back or other joint pain. At the May 2004 Report of Medical History, he clearly marked painful shoulder, knee trouble, skin disease and tumor, but marked "no" to recurrent back pain or any back problem. Almost ten years after the Veteran's August 2004 separation from service, VA treatment records show an April 2014 chest x-ray indicated mild degenerative changes of the spine. The Veteran was afforded a VA examination in August 2014 and was diagnosed with DDD of the lumbar spine and DDD of the thoracic spine. The Veteran claimed his back pain became notably worse since its start in 2002 and stated he had no exacerbating conditions beyond normal activities to report when at work or home. Of note, the Veteran's occupation after service was aircraft mechanic. The examiner noted that the Veteran has multiple ratings regarding service-connected injuries that were likely sustained due to the Veteran's job as helicopter mechanic, however, there were no clinical reports or complaints regarding having sustained a back injury in service. The examiner opined that the Veteran's DDD was likely due to the continuation of his post military work in aircraft services. Another VA examination was afforded in February 2020. This examiner noted the Veteran's x-rays were negative for arthritis. Thus, the examiner did not provide an opinion as to etiology because there was no diagnosis of pathology on examination. At a follow-up VA medical opinion on October 2020, the examiner again stated that the Veteran's x-rays were negative in February 2020, which contradicts the diagnosis at the June 2014 VA examination. The examiner stated a general diagnosis of low back strain is more appropriate, but nonetheless, found that it was less likely than not that his low back pain had its onset in service or due to hard landings in helicopters. The Veteran was afforded another VA examination in June 2021. The examiner confirmed the Veteran's diagnosis of degenerative arthritis, DDD and lumbosacral strain, and also found thoracic scoliosis. The examiner opined that the Veteran's back condition was less likely than not caused by service. The examiner noted that the Veteran reported an onset of symptoms in 2002, but his STRs are silent for recurrent back pain. The first objective documentation of chronic back pain is on a claim in 2013. Again, back pain was specifically denied by the Veteran on multiple occasions at the time of separation. Given the lack of objective evidence of onset during military service, the back disabilities are less likely incurred during service and more likely occurred after service, based on the available evidence. The Board attaches significant probative value to the June 2021 VA opinion as it is well-reasoned, consistent with other evidence of record, and included consideration of the Veteran's pertinent medical history and contentions. To the extent the Veteran has suggested that he experienced back pain ever since service, and that it was a manifestation of the currently diagnosed back conditions, he is not competent to make such a medical determination as he has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires an understanding of human anatomy, as well as the ability to conduct and interpret complicated diagnostic medical testing such as x-rays and MRIs. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Although he is competent to discuss observable symptoms, there are differing statements of record regarding the onset of such symptoms. He has stated that his symptoms began in service and continued to the present; the Board finds such statements to be less credible than his statements made for the purpose of medical treatment. He expressly denied back symptoms, while noting several other conditions at separation. Therefore, the later statements are not credible, as they contradict the evidence of record, and are entitled to low probative value. There is also no objective medical evidence of arthritis within one year of separation. The more probative evidence, including VA treatment records and examinations, put the onset of his back condition many years after service. Based on the foregoing, the most competent, credible, and persuasive evidence of record indicates that service connection for a low back condition is not warranted. Accordingly, this claim for service connection for a back disability must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.