Citation Nr: 21007305 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 12-28 962 DATE: February 9, 2021 ORDER Entitlement to service connection for a low back disability, to include as secondary to a service-connected disability, is denied. FINDING OF FACT The Veteran’s low back disability is not secondary to service-connected disability, and is not otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to July 1965, with additional service in the Naval Reserve. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously before the Board in August 2017, May 2019, and October 2020, where it was remanded. The Veteran testified before a VA Decision Review Officer in December 2011 and the undersigned Veterans Law Judge in April 2017. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. The Veteran has a current low back disability. For example, during a VA examination most recently in August 2020, the Veteran was diagnosed with degenerative arthritis, intervertebral disc syndrome, and spinal stenosis. He asserts that his low back disability is related to an in-service softball injury in March 1964 where he collided with a larger serviceman, resulting in the Veteran’s service-connected residuals of a tibia fracture. These residuals are now rated as several left knee disabilities, including a meniscal tear with instability, as well as a left hip disability. He claims that this injury resulted in his currently claimed low back disability, and that his low back disability was caused or aggravated by his service-connected left knee and hip disabilities due to an altered gait and a number of falls. Generally, to establish service connection, a claimant 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Turning to the evidence, while his service treatment records (STRs) confirm the in-service softball injury that resulted in a broken tibia, they show no complaints, diagnosis, or treatment related to a low back disability. As the Veteran reported other ailments during this period, and back problems are the type that a reasonable person would report, if the Veteran was experiencing problems with his low back during service the Board would expect that he would have reported these problems to medical professionals. Further the record also reflects STRs from the Veteran’s subsequent service in the Naval Reserve through late 1988. Physical examinations and reports of medical history during this period, the last of which is dated October 1988, note normal evaluations of the spine and the Veteran specifically denying having had recurrent back pain. If back pain was present at the time, both during his active service and/or his time in the Naval Reserve, the Board would expect the Veteran would have responded “yes” when asked if he had recurrent back pain because a reasonable person would have interpreted the question to include symptoms of back pain. Moreover, the Veteran responded affirmatively when asked whether he had other conditions in reports of medical examination and medical history and the Board would thus expect him to have also responded affirmatively to having back pain. Regarding onset of symptoms related to his back, the Veteran did not assert additional residuals manifesting as a low back disability until his January 2009 informal claim for service connection. While he stated at that time that a herniated disc was diagnosed in the early 1980’s, and that his back pain has existed since, subsequent medical records are absent reports of ongoing back pain, including during an October 1988 report of medical examination and corresponding report of medical history. May 2000 VA examinations for the purposes of assessing the residuals of his left tibia fracture notes the Veteran specifically denying any low back pain. Importantly, the Board also notes that the Veteran specifically reported during his April 2017 hearing testimony before the undersigned that his low back disability began 15 years prior. As a chronic low back disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of the Veteran’s current low back disabilities cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s multiple reports of medical history and physical examination in his STRs. The Board finds these records to be reliable as they were done contemporaneous to service, both active and otherwise, and for the purpose of identifying disabilities at the time. Any current assertion of pain continuing since service is also in conflict with the Veteran’s hearing testimony and post-service medical records. The Veteran presented for a number of VA examinations related to his claim. In January 2009, while the Veteran reported pain in the shoulder, knee, ankle, tibia, hip, and back, the only assessed residual of his in-service tibia fracture was recorded as “limping to the left leg.” The Board notes, however, that physical examination at the time was limited to the lower extremities. A full VA back examination was afforded in November 2012, ant the Veteran reported that his back pain began gradually in the early 1980s, which he believed was secondary to his in-service injury. The examiner opined that the Veteran’s low back disability was less likely than not related to his service-connected left tibia fracture. The examiner explained that the Veteran’s left tibia fracture was well-healed and would not cause problems with his gait or abnormal biomechanics of the lumbar spine, and that medical literature did not suggest that problems in one joint can be related to problems in the spine in the absence of a generalized inflammatory condition such as gout, spondyloarthropathy, or rheumatoid arthritis. Instead, the examiner associated his disability to age associated “wear and tear” based on X-ray findings. A VA back examination was again afforded in April 2016. The examiner opined similarly to the November 2012 examiner, finding it less likely than not that his low back disability was caused or aggravated by his in-service tibia fracture and its residuals, attributing it instead to the normal aging process. The examiner explained that there was no significant lumbar spine injury and no objective evidence of a chronic recurrent back problem or residual lumbar spine pathology in the Veteran’s STRs, and that medical literature did not recognize that a mid-shaft fracture of the tibia with residuals would cause or aggravate his low back disability. Pursuant to the Board’s remand in August 2017, an additional VA examiner’s opinion was obtained in April 2018. Specifically, following a review of the record, the examiner was asked to provide a medical opinion as to whether it is at least as likely as not that any low back disability present during the appeal began in service, was caused by service, or was otherwise related to service, to include his 1964 softball injury and subsequent treatment for an in-service left tibia fracture. The examiner was also asked to opine as to whether it is at least as likely as not that any low back disability present during the appeal was: a) caused by service-connected residuals of a left tibia fracture, left hip disability, or a combination of the two; or, b) worsened beyond the normal progression as a result of the Veteran's service-connected residuals of a left tibia fracture, left hip disability, or a combination of the two. Similar to the above examinations, the examiner opined that the Veteran’s low back disability was related to normal wear and tear, senescence, and genetics, as the medical literature did not support a finding that his service-connected tibia fracture residuals, left hip arthritis, or a combination of the two, would cause or aggravate this Veteran’s low back disability. The Board recognizes that the above opinions, while generally addressing his claims on a direct and secondary basis, do not consider the Veteran’s reported falls caused by his service-connected disabilities. As noted above, the Veteran’s left tibia fracture residuals were recharacterized and rated as a left knee meniscal tear resulting from his well-healed fracture. Service connection is also now in effect for separately-rated left knee instability, which supports his assertion that his knee would at times buckle or “give way.” As such, the Board remanded the Veteran’s claims again in May 2019 for additional VA examinations and opinions, which were provided in November 2019, with an addendum opinion provided the following August 2020. Similar to the above opinions, the examiner opined that the Veteran’s disabilities were at least as likely as not due to senescence, rather than service or a service-connected disability. After review of the evidence, including an absence of these disabilities until long after service, the examiner explained that, although the Veteran gave a compelling history of altered gait and falls, there was not enough evidence to support a relationship between his left knee and hip disabilities and the development or aggravation of his current low back disability. Absent any significant physical deformity, ankylosis of a major joint, neurologic impairment, or severe gait dysfunction that might affect an unrelated joint, the most important risk factor for developing this Veteran’s specific condition is advancing age. The Board finds the above opinions, as a whole, to be highly probative as they were made by medical professionals with consideration of the specific facts in this case and after physical examination of the Veteran. While the opinions provided vary in scope, the examiners collectively opined that it was less likely than not that the Veteran’s low back disability present during the period on appeal was incurred in service as the record is absent this disability for decades after the in-service injury he relates it to. Further, as the Veteran’s disabilities are degenerative in nature, rather than traumatic, and as medical literature does not link these degenerative disabilities to his service-connected disabilities, the examiner’s found it is less likely than not that it was caused or aggravated by his service-connected left knee and/or hip disabilities, including related traumatic falls. Moreover, there are no probative medical opinions or competent and credible evidence in significant conflict with the findings of the VA examiners. While the Board acknowledges the various statements by the Veteran’s private physicians during the appeal, they are relatively speculative in nature, essentially opining that his disabilities “could” be the result of his in-service incident where he collided with another serviceman. These opinions are also without review of the entire medical record, including the Veteran’s STRs which, again, are negative for complaints or treatment for these disabilities until long after service and include the Veteran’s report of not experiencing painful or swollen joints. Thus, the Board affords these statements by the Veteran’s private physicians little, if any, probative weight. Further, while the Board remanded the Veteran’s claim most recently in October 2020 to obtain VA treatment records related to recent back surgery, these records note only surgical intervention for increasing back pain, and are absent any relevant information related to the etiology of his low back disability. The Board has considered the Veteran’s statements, to include his assertions that he has a low back disability that is related to service or service-connected disabilities. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., back pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.