Citation Nr: 21006654 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-29 373 DATE: February 4, 2021 ORDER Entitlement to service connection for a low back disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a low back disorder due to a disease or injury in-service, to include a specific in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1960 through June 1964. The Veteran’s current claim is on appeal from a rating decision dated in September 2016. The Veteran withdrew his request to have a hearing before a Veterans Law Judge (VLJ) in correspondence dated June 2018. In July 2018, the Board remanded this matter for additional development and consideration. The issue has now been returned to the Board for further appellate consideration. As is further discussed below, the Board finds that there has been substantial compliance with the directives of the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). VA has a duty to notify claimants, under 38 U.S.C. § 5103(a)(b) and 38 C.F.R. § 3.159(e), of evidence necessary to substantiate a claim. That duty includes notice to a claimant if VA is unable to obtain evidence identified as relevant to the claim. The RO complied with its duty to assist. In March 2017, the Veteran requested VA to assist him in gathering records from Dr. Norris, M.D., Dr. Burke, M.D., Dr. Conger, M.D., and Dr. Stegman, M.D., and hs service treatment records (STRs) from his time in service with the United States Marine Corps. See March 2017 Correspondence. In August 2020, the Veteran was informed of three failed attempts to obtain medical records from the Diagnostic Center of Medicine in Las Vegas, Nevada, where Dr. Norris, M.D., Dr. Burke, M.D., Dr. Conger, M.D. practiced. See August 2020 Final Attempt Letter. In April 2020, the VA informed the Veteran that medical records were not obtained from Dr. Stegman, M.D., after it was reported that medical records were not maintained after 10 years. See April 2020 VA Correspondence. In September 2020, the Veteran responded in a Supplemental Statement of the Case (SSOC) notice that he had no additional information or evidence to submit. See September 2020 Correspondence. Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). The Board notes that the issue on appeal was characterized by the agency of original jurisdiction (AOJ) as entitlement to service connection for spinal fusion. However, the Veteran has been most recently been diagnosed with degenerative arthritis of the spine; therefore, the Board has recharacterized the issue more broadly to include any low back disorder reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Service Connection The Veteran is seeking service connection for a low back disorder that he contends is due to his military service. Specifically, he contends that his diagnosed degenerative arthritis of the spine and spinal fusion, is the result of lifting heavy artillery shells to load howitzers, running heavy equipment, and repair and operations of heavy equipment. He further contends his L4-L5 spinal fusion is a result of this activity. See May 2018 Form 9; September 2016 Notice of Disagreement. Applicable Laws and Regulations In general, in order to prevail on the issue of service connection the evidence must show: (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. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also 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. 38C.F.R. § 3.303 (d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include arthritis, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for an enumerated "chronic disease" listed under 38 C.F.R. § 3.309 (a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). That is, under 38 C.F.R. § 3.303 (b), with an enumerated "chronic disease" such as arthritis is shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). This rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity of symptomatology. 38 C.F.R. § 3.303 (b). Factual Background The Veteran’s entrance and separation examinations found him to be clinically normal. See June 2016 Service Treatment Records (STR), at p. 5, 8. However, STR notes from March 1963, report “back ache and complaints of pain in the pubic area, diagnosed as myalgia secondary to muscle strain in weight lifting.” Id. at p. 38. In May 2016, the Veteran attended an examination for type 2 diabetes, where it was noted he had back pain, decreased range of motion. The Veteran reported that his post-operative arthritis “getting worse lately” from a spinal fusion L4/5 in 1971. See March 2018 Non-Government Medical Treatment Records, at p. 10, 14. In September 2019, the Veteran presented to a VA Back (Thoracolumbar Spine) Conditions examination, where he was diagnosed with degenerative arthritis of the spine and spinal fusion. See September 2019 VA Back (Thoracolumbar Spine) Conditions Disabilities Benefits Questionnaire (DBQ). In the associated Medical Opinion, the examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. See September 2019 Medical Opinion DBQ. The rationale provided was: “[w]ithout any service record pertaining to back issues that could have led to the spinal fusion, it is hard to associate it with military service.” The examiner failed to establish chronicity, opining, the Veteran’s STRs only contain one notation for treatment of myalgia in March 1963, his separation examination did not report spine or back issues, and his spinal fusion was performed in 1971. Id. at p. 1-2. Presumptive Service Connection As an initial matter, the Board finds that the Veteran has a current diagnosis of degenerative arthritis of the spine and spinal fusion. See September 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. Thus, the first element of service connection is met. The Board notes that the Veteran is not entitled to service connection for degenerative arthritis of the spine and spinal fusion on a presumptive basis as the evidence does not suggest that he was diagnosed within one year of service separation, which would be by June 1965. In fact, review of the Veteran’s claims file shows that he underwent his spinal fusion in 1971, seven years after separation from the service. See September 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. March 2018 Non-Government Medical Treatment Records, at p. 14. Direct Service Connection A. Current Disability The Board finds that the Veteran has a current diagnosis of degenerative arthritis of the spine and spinal fusion. See September 2019 VA Back (Thoracolumbar Spine) Conditions DBQ. Thus, the first element of service connection is met. B. In-Service Incurrence With respect to the second element of service connection, an in-service incurrence or aggravation of a disease or injury, there is in-service incurrence on a direct basis. For instance, the Board notes that the Veteran's service treatment records from March 1963, noted “back ache and complaints of pain in the pubic area, diagnosed as myalgia secondary to muscle strain in weightlifting.” See June 2016 Service Treatment Records (STR), at p. 38. C. Nexus The third element of service connection is a causal relationship between the present disability, and the disease or injury incurred or aggravated during service. The Board finds that the record does not establish a nexus between the Veteran’s currently diagnosed degenerative arthritis of the spine and spinal fusion and any incident in the Veteran’s active service to include his conceded back pain during service in March 1963. See May 2018 Form 9; September 2016 Notice of Disagreement. Importantly, the burden is on the Veteran to demonstrate that he is entitled to service connection. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits). However, he has not submitted any evidence that establishes this essential element of service connection. Furthermore, of the evidence of record that pertains to his back, it does not support the Veteran’s contention. Specifically, the Veteran was examined by VA in September 2019. See September 2019 Medical Opinion DBQ. This examination did not find a relationship between the Veteran’s disability and service. Rather, based on a review of the STRs and the Veteran’s medical history, the examiner determined that the Veteran’s degenerative arthritis of the spine and spinal fusion disability was less likely as not related to an in-service injury, event, or illness. In fact, the examiner stated that he could not establish that the disorder was chronic in service, where it was documented that the Veteran had one complaint in service. Notably, the examiner was aware that the Veteran stated that he developed this disability from running, carrying heavy shells. Even knowing this history, the examiner in his medical opinion, still opined that “[w]ithout any service record pertaining to back issues that could have led to the spinal fusion, it [wa]s hard to associate it with military service.” Id. at p. 1. Additionally, like the examiner, the Board has reviewed the Veteran’s separation examination and there is no information noted as to problems with his back. The only evidence in support of the claim for the Veteran’s disability are the Veteran’s own statement that he “believes all medical issues started in military service dealing with heavy lifting or artil[l]ery shell to load howlitzer. Running heavy equipment, repairs [and] operations.” See May 2018 Form 9. While the Veteran believes that the diagnosed disorder is related to his military experience, he is not competent to provide a nexus opinion as the issue of causation in this case as it requires knowledge and interpretation of complicated diagnostic medical testing, such as laboratory and radiographic findings. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Based on the forgoing, the Board finds that the third element of service connection (nexus) is not met. Alternatively, the Veteran can also establish the nexus element of service connection by demonstrating continuity of symptomatology for degenerative arthritis of the spine and spinal fusion. However, here, as stated previously, after service the available post-service records do not show any complaints of or treatment for the claimed disorder until 1971 at the earliest, when the Veteran underwent his spinal fusion. This is at least more than 7 years since the Veteran separated from service. Moreover, a definitive diagnosis of degenerative arthritis of the spine was not provided until 2019, which is 55 years since separation from service. No other evidence of record have provided the essential evidence to demonstrate continuity of symptomatology to include statements by the Veteran. Notably, in his notice of disagreement and his VA Form 9 he states that his disability was incurred in service, but this is not evidence of continuity, where there is no description of continuing symptoms since his discharge from service. See May 2018 Form 9; September 2016 Notice of Disagreement. As such, there has been no evidence of these chronic diseases since service. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). All in all, the Board concludes that, while the Veteran meets both the first and second prongs of service connection, the requirements of a current diagnosis and an in-service incurrence, the Veteran does not satisfy the third prong, which is establishing that the diagnosed degenerative arthritis of the spine and spinal fusion is related to an in-service injury, event, or disease. See 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), (d); see also See September 2019 Medical Opinion DBQ. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Accordingly, the claim is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, 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.