Citation Nr: 21076038 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-06 602 DATE: December 22, 2021 ORDER Service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a low back disability that was manifested in service or within the one-year presumptive period, or is otherwise related to service. The Veteran did not sustain a superimposed disease or injury to his congenital lumbar spine defect during service. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.9. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1988 to November 1988 and from July 1989 to April 1992. He testified at a videoconference hearing before the undersigned in August 2017. This matter was before the Board in May 2018, November 2019, and July 2021 when it was remanded for additional development. Service Connection The Veteran contends that a back injury he sustained in 1987 resolved prior to his first period of active service (April 1988 to November 1988). He further contends that a fall from a truck during his second period of service (July 1989 to April 1992) resulted in an injury to his lower back that has caused him pain since that time. See August 2017 hearing transcript Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption 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. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection for congenital or developmental defects is precluded by VA regulation. 38 C.F.R. §§ 3.303 (c), 4.9. Service connection for a congenital defect can only be established if the congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. See VAOPGCPREC 82-90 (July 18, 1990). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's first period of active service was from April 1988 to November 1988. Service treatment records (STRs) from this period show that the Veteran reported a history of back pain since an April 1987 injury on an April 1988 Enlistment Report of Medical History. An April 1988 Enlistment Report of Medical Examination notes that orthopedic consultation showed 5-degree dorsal spine scoliosis; the Veteran had no pain and function of the lumbosacral spine was normal. The Veteran's second period of active service was from July 1989 to April 1992. An August 1989 STR notes the Veteran's complaints of coccyx pain for one week and a slightly uneven gait after falling from a truck. Examination revealed tenderness to the sacral coccyx area without edema or erythema; the impression was soft tissue bone contusion. The Veteran was seen again in August 1990 with complaints of back pain that began while running; the diagnosis was myalgia. A March 1992 Separation Report of Medical Examination noted that clinical evaluation of the spine was normal. Post-service treatment records show the Veteran was seen as early as 1997 with complaints of low back pain; the diagnosis in June 1997 was low back spasm. A February 2008 VA treatment record notes the Veteran reported he fell from a ladder at work in December 2007 and had X-ray studies of his back. August 2010 VA X-ray studies of the coccyx and sacrum were normal. February 2011 VA X-ray studies showed mild degenerative changes of the lumbar spine but no evidence of fracture or displacement in the lumbar spine or abnormalities in the soft tissues. Normal alignment was maintained. There was normal bony mineralization. A June 2012 VA Back Conditions Disability Benefits Questionnaire (DBQ) notes that imaging studies showed mild spondylosis with decreased disc height in the lumbar spine; no fracture, subluxation, or bony destruction changes were seen, and alignment was satisfactory. An April 2013 VA MRI showed a small disc bulge at T12-L1 and mild diffuse bulges at L2-L3, L3-L4, and L4-L5. There was facet hypertrophy at L4-L5 and a disc bulge at L5-S1 abutting the bilateral L5 nerve roots without displacement or compression. In a September 2017 letter, the Veteran's private physician Dr. AK noted the Veteran's history of low back pain for "many years." He also noted the Veteran's report of injury while on active duty and opined that his "chronic low back pain might potentially be resulted from the injury he sustained while in active duty." A September 2017 statement from Dr. SB indicated he had reviewed the record of the Veteran's August 1989 coccyx injury and VA treatment records. He stated the VA treatment records showed treatment for lower back pain since 1994. Dr. SB opined that the Veteran's current back disability was more likely than not "direct service connected due to 4 foot fall onto his buttocks while on active duty." He indicated the current findings (as noted on imaging studies) were due to trauma and were not suggestive of natural aging. Rather, the Veteran had "a documented in service injury which [could] (and frequently [did]) cause chronic pain due to damage to the lumbar intervertebral discs. Specifically, a free fall onto the buttocks [could] rupture lumbar intervertebral disc." Dr. SB further stated, "As the discs have a poor blood supply, one injury can result in decades of chronic pain due to nerve root irritation." In addition, Dr. SB stated the Veteran had documented back symptoms since separation. Current diagnoses, as noted on a November 2019 VA Back Conditions DBQ, are scoliosis, bulging discs of the thoracic and lumbosacrum, and degenerative facet joint disease of the lumbar spine. In a December 2019 VA medical opinion, the examiner found that scoliosis pre-existed the Veteran's service, and was a congenital/developmental defect. See December 2019 VA Medical Opinion DBQ. A September 2021 VA Medical Opinion DBQ notes the examiner reviewed the claims file and examined the Veteran. The examiner opined it was less likely than not that the Veteran's pre-existing congenital/developmental defect of scoliosis was subject to a superimposed injury or disease in service that resulted in additional back disability. In this regard, the examiner acknowledged the Veteran's pulled muscle during his first period of service, his fall from a truck during his second period of service, and his complaints of ongoing back pain since service. The September 2021 VA examiner also opined the current diagnosed low back disabilities were less likely than not incurred in or caused by service, to include any injury (including pulled muscle or fall) therein. In reaching this conclusion, the examiner reviewed the previous VA and private opinions in the record. The examiner stated, in pertinent part, that acute forms of mechanical back pain and muscle spasm were found commonly in healthy people, often related to overuse, and moreover, inconsistent with a chronic clinical condition. He noted that the Veteran separated from his second period of active duty in April 1992, and that X-ray studies in 2010 and 2011 supported no clinical spine diagnosis up to that time. Mild arthritis was first shown years after service. The spine changes found on imaging (as noted above) "[were] consistent with the variable but common radiographic signs typically associated with aging." The examiner opined that the mild changes of spondylosis noted on 2013 X-ray studies were inconsistent with a history of longstanding back disease, and were also independent of the small degree of scoliosis previously reported. Regarding scoliosis, the examiner stated, "Complaints of back pain are ubiquitous in the population and the natural course of scoliosis is highly variable, but there is no support in the evidence for aggravation beyond the natural course." He concluded there was no nexus between the current degenerative changes and scoliosis. Based upon the forgoing, the Board finds that the preponderance of the evidence is against a finding that any current low back disability manifested in service or to a compensable degree in the first year following his separation from service or is otherwise related to service. As noted above, there is no evidence that the Veteran's current bulging discs of the thoracic and lumbosacrum, and degenerative facet joint disease of the lumbar spine manifested in service or to a compensable degree within the first year following separation from service. Additionally, the September 2021 VA medical opinion found that the Veteran's current low back disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event or illness. The Board finds this opinion to be the most persuasive, as the examiner reviewed the claims file, cited specific medical evidence as well as the Veteran's contentions, examined the Veteran and provided reasoned medical explanations for his conclusion. The Board also concludes that the preponderance of the evidence is against a finding that the Veteran sustained a superimposed disease or injury to his congenital lumbar spine defect during service. See 38 C.F.R. § 3.303(c). As noted, following the Veteran's service, he did not appear to develop additional/non-congenital back problems until many years after service. Additionally, the September 2021 VA medical opinion stated there was no evidence the Veteran developed an additional disability due to any superimposed in-service injury. See 38 C.F.R. § 3.303(c). Again, the Board finds this opinion to be the most persuasive, as the examiner reviewed the claims file, cited specific medical evidence as well as the Veteran's contentions, examined the Veteran and provided reasoned medical explanations for his conclusion. The Board considered the private opinions of record, but did not find them to be persuasive. Dr. AK's September 2017 opinion is speculative in nature; medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Dr. SB failed to note the Veteran's two periods of active service, cite to specific treatment records, and did not provide reasoned medical explanations with discussion of supporting medical evidence. While it is true that a medical opinion need not "explicitly lay out the examiner's journey from the facts to a conclusion," the reasoning of the examiner must still be discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). (Continued on the next page) Based on the foregoing, the Board finds that the preponderance of the evidence is against finding that the current back disability is causally related to service, and finds there was no superimposed disease or injury during service. The 2021 VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes he is entitled to service connection; however, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA opinion. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.