Citation Nr: 21008843 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-12 129 DATE: February 18, 2021 ORDER Service connection for a low back disability is denied. FINDING OF FACT The Veteran has a diagnosis of low back degenerative arthritis, which did not manifest in active service and is not otherwise etiologically related to such service. CONCLUSION OF LAW The criteria for service connection for a low back disability 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 February 1968 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing held in May 2015; a transcript of that hearing is of record. The Board remanded this matter to the RO in October 2015 for further development of the record. In July 2018, the Board remanded the Veteran’s claim again for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service connection for a low back disability The Veteran asserts that he is entitled to service connection for a low back disability. He also contends through his representative, that the October 2014 VA examination was inadequate because the examiner was only a certified physician’s assistant, and the doctor who conducted the March 2019 was not identified as a suitable expert in spinal disabilities. The Board does note that VA is not prohibited from having nurse practitioners or physician assistants conduct examinations. VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The Veteran has asserted no reason that the particular physician's assistant or doctor who conducted the 2014 or 2019 examination is not competent to assess the nature and severity of his disabilities. In this case, the Veteran has challenged only the adequacy of the examiner’s training; however, training as a nurse practitioner and doctor is more than sufficient to conduct the examination and relay the relevant information for rating purposes. Cox, supra; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA has no obligation to present affirmative evidence of a VA physician’s qualifications during Board proceedings, absent a challenge by the Veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or an injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability also may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disability or if it is aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Certain diseases, including arthritis, are listed among the “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran was afforded an October 2014 VA orthopedic examination, and the examiner provided a medical opinion. However, as noted by the Board in its October 2015 Remand, several pertinent facts were misstated by the examiner as follows: (1) the examiner incorrectly stated that the Veteran underwent a hemilaminectomy in 1970, when in fact the surgery was performed in 1980; (2) the examiner incorrectly noted that the Veteran was discharged from service in 1969, when in fact he was discharged in January 1970; and (3) the examiner failed to address the Veteran’s service as an artillery loader and its potential impact, if any, on his low back disability. Considering these inadequacies, the Board remanded this matter for clarification in October 2015. See Barr v. Nicholson, 21Vet. App.303, 310 (2007) (requiring VA examinations to be adequate). Although a subsequent VA examination and opinion was obtained in November 2015, the Board found that the November 2015 VA examination and opinion did not comply with the Board’s remand instructions. Although the examiner corrected the factual inaccuracies relating to the Veteran’s date of surgery and date of separation from service, the examiner failed to comply with the Board’s instruction that the examiner must comment on the Veteran’s service as an artillery loader, and what effect, if any, this may have had on his low back disability. When the Board’s remand requests are not substantially satisfied, the Board errs as a matter of law if it fails to ensure compliance. See Stegall v. West, 11Vet. App. 268, 271(1998). The VA conducted another medical examination of the Veteran’s low back disability in March 2019. At that examination, all relevant facts were correctly stated, and the examiner considered the Veteran’s contentions reference the effects of his job on his back problems as an artillery loader in the Army. In order to establish service-connection the Veteran must have a current disability. The VA examinations in 2014 and 2019 both found that the Veteran has a current back disability to include degenerative arthritis, which is listed as a chronic disease. 38 C.F.R § 3.309(a). Service treatment records do not reflect complaints or treatment for the low back. The September 1969 examination conducted in connection with the Veteran’s separation from service described the spine as normal. The Veteran denied any history of recurrent back pain, arthritis or rheumatism on the September 1969 report of medical history. The Veteran, however, described having back pain in service and described his duties carrying heavy ammunition to and from transport to the actual gun. The last element needed for service connection is “nexus,” something to causally connect the inservice even with the Veteran’s current disability. For this element the 2019 examiner says, “The condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.” As rationale for his negative nexus opinion, the 2019 examiner had this to say: MEDICAL EVIDENCE DOES NOT SUPPORT THIS CLAIM. MEDICAL RECORD REVIEW STR'S, and 12m's after active duty military service, REVEAL NO OBJECTIVE EVIDENCE OF A CHRONIC low back CONDITION, THEREFORE, NO NEXUS CAN BE MADE. A condition must be chronic to warrant service connection. STR's silent on any low back complaint or diagnosis. 9/25/69 Separation exam SM denied recurrent back pain and back/neuro exams were normal. RAD: 01/27/1970. 6/73 (3.5 YEARS AFTER RAD 1/27/70) Orthopedist noted pain started while working at Cold Spring Granite Company lifting heavy objects, then he had evidence of a significant disc protrusion and x-rays did reveal an L5, S1 pars interarticularis defect but no spondylolisthesis, he was fitted with a William's flexion brace and gradually improved. The examiner further commented the Veteran’s job duties as a field artillery crewman and the impact of carrying ammunition and other heavy objects and found that whether these duties injured his low back would be mere speculation as there are no service treatment records that make any mention of low back complaints or diagnoses. Rather the first diagnosis is 3.5 years after service. The Board finds the 2019 examiner competent to provide the above medical opinion, because he is a medical professional. see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board also finds the doctor’s opinion and rationale credible, because it is logical and based on accurate evidence of record, and as such is entitled to significant probative weight. Although the examiner who conducted the October 2014 VA examination and provided the November 2015 addendum medical opinion did not discuss the Veteran’s job as an artillery loader, the March 2019 examiner did consider the lay report as to the onset of pain. The examiner specifically found that it would require speculation to link the condition to his duties carrying heavy items. The Court held in Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. The Jones Court acknowledged that an “examination is not inadequate merely because the examiner states he or she cannot reach a conclusion without resort to speculation.” Jones, 23 Vet. App. at 391. In this case the examiner explained that such a link would be speculation as there was no medical evidence documenting any injury or treatment. In other words, the examiner found that linking the condition to the duties of heavy lifting would require speculation. The law provides that service connection may not be granted on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. at 33. Although the Board also finds the Veteran and his spouse competent to make the statements they provided about the Veteran’s back pain having started before the accident at work in the case of the Veteran’s wife, and even for the Veteran to say his back pain started in service and continued after service. 38 C.F.R. § 3.159(a)(2). Their statements conflict with other records in the file. Specifically, the Veteran did not mention any complaint of back pain at the time of his separation from service and at the time of the work injury did not report any prior injuries to the spine. The October 1980 private record specifically noted the prior injury in June 1973 but did not mention any prior injury or back pain. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (Federal Rule of Evidence 803(4) expands the hearsay exception on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Therefore, the Board cannot grant direct service connection based on the lay statements in this case. Arthritis is a chronic disease which is subject to presumptive service connection. There is nothing in the Veteran’s service treatment records, to support a finding of chronicity of back pain during service. Therefore, in this case the Board cannot grant presumptive service connection either, because the evidence is not in equipoise as to a finding of a “chronic disease” in service or “continuity of symptoms” after service. Also back pain did not manifest to a compensable degree within one year of leaving service. The Board does not find the Veteran’s back disability incurred in service based on a presumption. In sum, the weight of the competent and credible evidence of record weighs against the claim for service connection for a low back disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.