Citation Nr: 21010664 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-17 755 DATE: February 25, 2021 ORDER Entitlement to service connection for low back disorder is denied. FINDINGS OF FACT 1. The Veteran’s low back was sound at service entrance. 2. The Veteran’s current low back disorder, degenerative joint disease, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for low back disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1984 to November 1988. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. A June 2018 Board decision found the claim for entitlement to service connection for low back disability was reopened and remanded the claim for additional development, obtaining updated treatment records and a VA medical opinion. There has been substantial compliance with the Board’s remand as updated VA treatment records have been associated with the file and November 2019 VA medical opinions are of record. Entitlement to service connection for low back disorder The Veteran contends that her low back disorder is related to military service. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). Service connection for certain chronic diseases, including arthritis, will be presumed if they manifest to a compensable degree within one year following active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A nexus to service (for diseases listed in 38 C.F.R. § 3.309 (a)) may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The provisions of 38 U.S.C. § 1111 provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). When considering the pertinent evidence of record, the Board finds that service connection for a low back disorder is not warranted. In 1999 imaging showed mild scoliosis of both the thoracic and lumbar spines. Imaging in 2012 showed normal lumbar spine, but slight scoliosis of the thoracic spine. Imaging in July 2018 showed no scoliosis. The Veteran was not diagnosed with degenerative arthritis of the spine until the October 2019 VA examination after x-rays showed mild degenerative joint disease. Notably, the Veteran reported a history of low back pain for several months. The VA examiner stated the Veteran had good range of motion without displaying signs of pain and the examination was medically inconsistent with the Veteran’s statements. At the March 2018 hearing, the Veteran testified that during basic training after one 25-mile road march in full gear, of which about 15 miles was running, she remembers telling her drill sergeant that her back was hurting. She testified that it has been bothering her ever since. The Veteran also stated that she was later put on limited duty with no lifting. The Veteran testified that she was not injured in a 1999 car accident and had been seeing a chiropractor even before the car accident. The June 2018 remand directives included obtaining VA and non-VA treatment records. VA treatment records were uploaded to the file. In January 2019, the RO requested that the Veteran complete and return releases of private treatment so that VA could obtain treatment records on her behalf. She was also advised that she could provide the treatment records directly. The Veteran did not respond. Therefore, VA has fulfilled its duty to assist with respect to private records. As there is a current diagnosis of degenerative arthritis of the spine and scoliosis was also noted in medical records during the appeal period, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between her military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Initially, the Board notes that this issue was remanded in June 2018 for an opinion, in part, on whether any low back disability clearly and unmistakably (undebatably) preexisted the Veteran’s service as the Veteran’s chiropractor had stated that the Veteran’s scoliosis was “made worse” during her time in service, suggesting that a back disability preexisted service. The Veteran is presumed sound at service entrance as there is a formal finding of unavailability for the Veteran’s entrance examination and some other service treatment records. The presumption of soundness has not been rebutted because the October 2019 VA clinician opined “there is no evidence that the low back disability undebatabl[]y preexisted . . . .” As the presumption of soundness has not been rebutted, the claim becomes one for service connection on a direct basis. As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such disease is shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this instance, however, service connection for a back disability on a presumptive basis is not warranted as the preponderance of the evidence is against a finding that arthritis manifest to a compensable degree within one year of service. The Veteran was not diagnosed with degenerative arthritis of the spine until the October 2019 VA examination after x-rays showed mild degenerative joint disease. To the extent that the Veteran is asserting that she experienced back pain and continuing symptoms thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, the Board finds the Veteran’s reports of continuity lack credibility as they are inconsistent with other statements of record and the medical evidence. Notably, in a 2005 disability report for the Social Security Administration, the Veteran reported her illnesses, injuries or conditions first bothered her in May 1991. In addition, a February 1999 private medical record noted a history of a motor vehicle accident not two weeks prior and that the Veteran reported constant low back pain. However, during her 2018 hearing the Veteran reported that she was not injured in the 1999 accident. Further, the 2019 VA examiner found the examination was medically inconsistent with the Veteran’s statement describing functional loss with repetitive use over time. Therefore, the Board concludes that the weight of the evidence is against a finding of continuity of symptomatology. See Shaw v. Principi, 3 Vet. App. 365 (1992). Private medical progress notes from March 2018 note that the Veteran “has scoliosis and it was reported to have been made worse with marching with a ruck sac. Since that time she has suffered constant mid to lower back pain and stiffness.” However, these notes do not provide a clear medical connection between the Veteran’s current disability and service as they appear to rely on the Veteran’s statements which have been found to lack credibility. The October 2019 VA examiner, while specifically noting the Veteran’s report of marching in full gear during basic training, indicated that it was less likely than not that the Veteran’s back disorder was related to service. The October 2019 VA examiner opined the Veteran’s back disorder was less likely than not incurred in or caused by or began during active service, manifested within one year after discharge from service, or was noted during service, with continuity of the same symptomatology since service “as prior results do not reflect this current finding.” The examiner noted the Veteran’s diagnoses of scoliosis and degenerative joint disease and clearly had reviewed the medical evidence of record. The Board affords the VA examiner’s October 2019 opinions, which are supported by a detailed rationale and medical knowledge, great probative value. In forming the opinion, the VA examiner specifically discussed post-service treatment and noted the Veteran’s lay assertions regarding her back disorder. Accordingly, service connection for a back disability, including scoliosis and degenerative joint disease, on a direct basis is not warranted. The Board notes the Veteran's contentions regarding the etiology of her claimed back disorder. To the extent that the Veteran contends that a medical relationship exists between her claimed back disorder and her service, the Board acknowledges that the Veteran is competent to testify as to her observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a back disorder is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran does not have the medical expertise to provide an opinion regarding the claimed back disorder etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the October 2019 VA examiner provided detailed rationales in support of the opinions and cited to the relevant evidence. For this reason, the VA examiner's opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, the Board finds that service connection for a low back disorder must be denied. In reaching this conclusion, the Board has considered the applicability of   the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sowden, 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.