Citation Nr: A21020125 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200526-87735 DATE: December 16, 2021 ORDER Entitlement to service connection for lumbar strain with degenerative arthritis of the spine is denied. REMANDED Entitlement to service connection for history of episcleritis OS without active signs of condition is remanded. FINDING OF FACT The preponderance of the evidence is against finding that lumbar strain with degenerative arthritis of the spine began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbar strain with degenerative arthritis of the spine have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2006 to August 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. The Board notes that in the May 2020 VA Form 10182, the Veteran requested to appeal the claims of entitlement to service connection for lumbar strain with degenerative arthritis, entitlement to service connection for irritable bowel syndrome, entitlement to service connection for rectal bleeding and entitlement ot service connection episcleritis. However, the Veteran's appeal of the claims for entitlement to service connection for irritable bowel syndrome and entitlement to service connection for rectal bleeding are untimely because the rating decision for those claims were issued in October 2018. The notified the Veteran of the untimely 10182 for these two issues in an August 2020 letter; with no response. Therefore, the only issues on appeal before the Board are entitlement to service connection for lumbar strain and entitlement to service connection for episcleritis. The Veteran's claim for entitlement to service connection for episcleritis is addressed in the remand section below. Legal Criteria Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for lumbar strain with degenerative arthritis of the spine. The Veteran contends that he is entitled to service connection for lumbar strain with degenerative arthritis of the spine because the disability began in service. During his July 2019 VA examination the Veteran alleged that he has experienced back pain over his upper and lower back since his 2008 motor vehicle accident in service. Evidence of record include May 2018 VA treatment records note that the Veteran has a current disability of degenerative joint disease of the spine. Subsequent July 2018 VA treatment records note some evidence of osteoarthritis of the Veteran's spine x-rays. Consistent with the Veteran's contentions, January 2008 treatment records note that the Veteran was involved in a motor vehicle accident in service. However, imaging did not note any abnormalities. Subsequent in-service treatment records do not note any complaints of lumbar pain. In fact, August 2010 exam in-service treatment records specifically note no back pain or tenderness. Similarly, during the Veteran's August 2010 separation exam no lumbar pains or disabilities were noted. Post service, treatment records do not show any complaints of or treatment for lumbar pain or strain prior to May 2018. VA treatment records from January 2016 and March 2016 note the Veteran's back as nontender, while April 2017 VA treatment records characterize the Veteran's back as normal with no midline, thoracic, or lumbar spine tenderness. Finally, the Veteran's August 2019 VA examination for his back notes that the Veteran has current disabilities of lumbosacral strain and degenerative arthritis of the spine. The Veteran reported that he had back pain "since the day" he was involved in a motor vehicle accident in 2008 when he was rear ended. The examiner opines that the Veteran's disability is less likely than not related to military service as there is no evidence of chronicity of back condition. The Board affords probative weight to the August 2019 VA examination. While the record shows one complaint of thoracic pain in service in January 2008, subsequent service treatment records show no complaints of back pain. Further, post service the record shows no complaints of back pain for approximately eight years post service. Less weight is afforded to the Veteran's contentions that his symptoms have continued since service, as this is not consistent with the evidence of record which shows no complaints of back pain post service until 2018. If the Veteran had been experiencing chronic or continuous symptoms since service (as he now alleges), it stands to reason that he would have mentioned this and also possibly have reported the precipitating injury (i.e., the motor vehicle accident in service), rather than recounting a much more recent onset of symptoms eight years post service. Based on the collective body of evidence, the Board finds that any statements as to continuity of symptoms since service are not credible based on the record, as a whole, including no mention of this for several years following service. See Cartright, 2 Vet. App. at 25 (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also 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.) In this case, the Veteran specifically denied any back problems or back pain at separation; but then indicated to the VA examiner that he had pain Further, the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion on these claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to lumbar strain with degenerative arthritis of the spine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, there are no records prior to March 2018 suggesting a lumbar strain complaint or diagnosis. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). There is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran's lumbar strain with degenerative arthritis is causally related to, or aggravated by, his service, and his statements asserting continuity of symptoms since service are not credible. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Based on the evidence of record which shows no diagnosis of lumbar strain with degenerative arthritis until 2018, eight years post service, and no evidence or opinion establishing etiological relationship between the Veteran's lumbar strain with degenerative arthritis and military service, entitlement to service connection for lumbar strain with degenerative arthritis is no warranted. Entitlement to service connection for lumbar strain with degenerative arthritis is denied. REASONS FOR REMAND 2. Entitlement to service connection for history of episcleritis OS without active signs of condition is remanded. Pursuant to the Appeals Modernization Act, remand is only warranted for a pre-decisional duty to assist error. Here, a pre-decisional duty to assist error exists. The Veteran was afforded a VA examination for his episcleritis in May 2019, prior to the decision on appeal. The examiner noted that the Veteran's episcleritis is less likely than not incurred in or caused by an in-service injury, event, or illness. As supporting rationale, the examiner notes that the Veteran has inflammatory bowel disease and costochondritis which "probably has systemic and ocular manifestation as episcleritis." This suggests that the Veteran's episcleritis may be secondary to costochondritis, for which the Veteran is service connected. Remand is warranted to obtain an opinion as to whether the Veteran's episcleritis is secondary to his service-connected costochondritis. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's episcleritis is at least as likely as not proximately due to or aggravated beyond its natural progression by the Veteran's service-connected costochondritis disability. The Veteran is to be presumed credible for the limited purpose of this examination. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.