Citation Nr: 21007538 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 07-22 267 DATE: February 9, 2021 ORDER Entitlement to service connection for a back condition is denied. FINDING OF FACT The most probative evidence of record is against a finding that the Veteran’s back disability is related to his active duty service. CONCLUSION OF LAW The criteria for the establishment of service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1967 to May 1970, with subsequent active duty service in the Kentucky Air National Guard. This matter was previously before the Board in January 2020, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in an October 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the January 2020 Board remand. In order to establish service connection for a claimed disorder, the following must be shown: (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). 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, 5107; 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). The last two Board remands in this case has been to compile a list of all periods of service, to include periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) as part of his service in the National Guard. A review of the record indicates that memorandums dated October 26, 2020 list the Veteran’s extensive periods of ACDUTRA and INACDUTRA. The Veteran alleges that his current back condition is etiologically related to service. More specifically, the Veteran claims that he injured his back during his active duty service in the Republic of Vietnam, or alternatively during an active duty deployment while he was in the United States Air Force Reserve in 2003-2004. At the outset, the Veteran has been diagnosed with degenerative arthritis of the spine. See August 2017 VA medical examination; see also VA treatment records generally. The Veteran service treatment records from his period of active duty service between July 1967 to May 1970, show that his back was deemed normal both on entrance and separation examinations. As noted earlier, the Veteran also had significant service in the National Guard to include periods of ACDUTRA and INACDUTRA as outlined in VA Memoranda dated October 23, 2020. However, periodic examinations during this period repeatedly show the Veteran denying any spine, musculoskeletal conditions, to include back pain. Overall, these records provide evidence against this claim. The first instances of reports of back pain in the Veteran’s treatment records appear in approximately 2000, 30 years after active service, when the Veteran was not on active duty, however a diagnosis was not obtained until the Veteran underwent an MRI in 2007. Notably, at the time of the diagnosis, the Veteran did not report any falls as having caused his condition. In fact, the 2007 MRI diagnosing the Veteran’s condition is notated as having been obtained following a motor vehicle accident. The Veteran’s was first afforded a VA examination for this condition in May 2011. The Veteran alleged he first had back problems during his first active duty period where he carried heavy objects. The Veteran also reported slipping on some ice while on deployment to Kirgizstan and hurt his back. The Veteran alleges receiving treatment for this along with pneumonia however the medical staff focused primarily on his pneumonia. Following the January 2020 Board remand, a VA addendum opinion was obtained in February 2020. The examiner reviewed the Veteran’s entire claim file and opined that it was less likely than not that the Veteran’s condition was etiologically related to, or had its onset during, his active duty military service. The examiner provided an adequate rationale following a thorough review of available evidence, to include in service and post service records, multiple aforementioned VA examinations and lay/buddy statements. The examiner noted that is no documentation of a back condition during his active military service. The examiner also stated that the Veteran’s statements and lay statements from a fellow airman concerning the onset and continuity of symptoms were reviewed in detail. The examiner found that these consist of subjective comments without any objective documentation. The examiner found that the overall evidence suggests that the falls mentioned by the Veteran and fellow servicemember were acute and transient. The examiner also noted that the lay statements fail to suggest whether the veteran had an acute self-limiting process versus a true chronic condition that could be service connected. Moreover, after reviewing the entirely of the claims file, the examiner noted that the veteran had a multitude of pre- deployment and post-deployment assessments in which he had opportunities to have any concerns about his back pain addressed. The examiner highlighted the lack of documentation of a diagnosis made, treatment rendered, or imaging before or after his many periods of active service. The Board finds the February 2020 addendum opinion to be the most probative evidence of record on the question of etiology in this case. It benefits from an exhaustive review of the medical file, affords due consideration to the lay statements, and are in general accord with the objective medical evidence in this case. Significantly, there is no probative competent medical opinion of record to the contrary. In fact, earlier VA examinations in May 2011, May 2014, November 2015, and August 2017 also found it was less likely than not that his current condition was etiologically related to his active duty service. While the Board has considered with sympathy the Veteran’s lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his back condition in this case. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his condition. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran’s reports of his symptoms are relevant; however, the question of the etiology of his back disorder is limited to the purview of someone with medical knowledge and training, such as the VA medical examiner in this case. In this regard, it is important for the Veteran to understand that the service records, the post-service treatment records, and the best medical opinions in this case provide highly probative evidence against this claim, outweighing the Veteran’s belief that this back problem is related to service. In sum, the evidence does not show that it is at least as likely as not that the Veteran’s diagnosed back disorder is related to any of his active service periods. The probative value of the Veteran’s assertions is outweighed by the probative value of the thorough and reasoned opinion of the VA medical expert. As the preponderance of the evidence is against the claim, service connection for a back disorder must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.