Citation Nr: 21011261 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 20-11 597 DATE: March 1, 2021 ORDER Entitlement to service connection for a back disorder is denied. FINDING OF FACT The preponderance of the evidence reflects that the Veteran’s back disorder was not incurred in or related to service and findings of symptoms of back arthritis did not manifest within one year of separation from service. CONCLUSION OF LAW The criteria for establishing service connection for a back disorder have not been 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 FINDING AND CONCLUSION The Veteran served on active duty in the Navy from November 1972 to July 1988. His awards and decorations include the Combat Action Ribbon. In a June 2020 decision and remand, the Board of Veteran’s Appeals (Board) reopened the Veteran’s claim for service connection for a back disability and found that the July 2017 VA medical opinion did not adequately address his lay statements regarding the onset and continuity of his back pain. Therefore, the Board remanded this issue to afford the Veteran a supplemental VA medical opinion. The Agency of Original Jurisdiction (AOJ) has done so, and readjudicated the case in an August 2020 Supplemental Statement of the Case (SSOC). The August 2020 medical opinion reflected a thorough review of the claims file and the physician provided a well-reasoned opinion that addressed the Veteran’s lay statements. The opinion is adequate. There was substantial compliance with the remand directives with regard to the issue being decided below. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his attorney have raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board…to search the record and address procedural arguments when the veteran fails to raise them before the Board.); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 for certain diseases. 38 C.F.R. §§ 3.303(a)(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The benefit of the doubt rule provides that a Veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Back disorder The Veteran contends that he has a back disorder that is etiologically related to his active duty service. During his May 1988 Report of Medical History, the Veteran reported that he was experiencing recurrent back pain and was taking medication for that pain. Other service treatment records dated March 1986, May 1985, April 1982, July 1976, October 1972 and September 1965 all reflect that the Veteran denied having back pain at those times. During a June 2005 examination of the lumbar spine, there was no tenderness and the straight leg raise test was negative, indicating an absence of radiculopathy symptoms. At a June 2007 primary care appointment, the Veteran was treated for arthritis symptoms in his hands. His back was not tender to palpation and arthritis of the back was not noted, nor was any other back symptomatology. A June 2010 VA treatment record notes the Veteran’s general report of arthritis pain, for which he was prescribed medication. The body part was not specified. A November 2010 private medical record noted joint pain specifically in fingers, elbows, and ankles, but not the back. A June 2012 record specified that the Veteran had arthritis pain in his hands and woke up every day with swollen and painful hands and knuckles. His back was not mentioned. In the Veteran’s 2013 Application for Disability Compensation and Related Compensation Benefits, he reported his back pain. At the time of his initial claim for service connection, the Veteran did not attribute onset of back pain to any specific incident or factor. Private medical records from July 2014 and October 2015 note arthritis but do not specify the body part. June 2014 private medical records show reports of neck pain, but not back pain. In May 2017, the Veteran requested to reopen his previously denied claim for his back disorder and submitted non-VA treatment records which noted the Veteran’s complaints of chronic back pain. The Veteran stated that his back disorder is service related, and that when he was in service his duties included lifting heavy objects. The Veteran also noted that he started experiencing back pain in service and had been prescribed medication while in service, and that the back pain continues to this day. A July 2017 VA treatment record notes back pain and knee pain, as well as “years of bilateral hand pain.” A subsequent VA treatment record notes “multiple joint pains: knees, back, hands.” The Veteran was afforded a VA examination in July 2017. At this time, an x-ray of the Veteran’s back confirmed diagnoses of Degenerative Joint Disease (DJD) and Degenerative Disc Disease (DDD). The examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, even, or illness. In so deciding, the examiner noted that during service, the Veteran’s injury was acute, there was no evidence of chronicity, and no nexus had been established. In its June 2020 remand, the Board found that the July 2017 VA examination was inadequate. Therefore it will not be assigned any probative weight in support of or against the Veteran’s claim. A January 2018 VA treatment record shows that the Veteran requested aquatic therapy for his back pain. In August 2020, the VA examiner reviewed the record, including the Veteran’s lay statements regarding the onset and continuity of his back pain. The examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner observed that the Veteran has a history of recurrent back pain arising between 1986 and 1988, and that the Veteran was diagnosed with DJD and DDD via x-ray in July 2017. The examiner also acknowledged that in 1988, there was affirmative evidence that the Veteran was on medication for back pain and reflected that he reported having recurrent back pain. However, the examiner notes that there is no further evidence of back pain until approximately 2012. With regards to the Veteran’s diagnoses of DJD and DDD in 2017, the examiner stated that both are natural conditions due to aging, with a genetic predilection. Specifically, the examiner noted that DJD is due to chronic inflammation involving the facets, and DDD is a natural aging process generally due to the desiccation of the discs. The examiner opined that there is no evidence of DJD or DDD for a period of over 20 years, even when considering the Veteran’s statements regarding continuity of symptomatology. The examiner stated that the Veteran’s primary back condition while in service was “more likely than not” strain. The examiner noted that it is accepted orthopedic knowledge, supported by standard medical texts, that “…strain itself does not lead to DJD and DDD.” Because of this, the examiner concluded that it was less likely than not that the Veteran’s current DJD and DDD are due to the back pain reported in service. The examiner also noted that there was no evidence of medical care for a back disorder until 2012, and explained that it is “unlikely that the Veteran could have gone such a time span with significant back disease without intervention.” The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, although the Veteran is competent to report his subjective symptoms of back pain and the continuity of those symptoms, the Veteran is not competent to provide an opinion as to the etiology of his current back disorder. The Board must determine on a case-by-case basis whether a particular condition is a type of condition that is within the competence of a lay person to provide an opinion as to etiology and nexus. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran is not shown to possess any pertinent expertise or medical training that would make him competent to render an opinion on the etiology of any current back disorder or to express an opinion about when his symptoms first warranted any medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide a medical diagnosis). No treatment provider or examiner has found an etiological relationship between the Veteran’s back disability and his active duty service. In 1988, the Veteran reported that he was experiencing recurrent back pain and was on medication for that back pain. The Board acknowledges that the Veteran states that his back pain began in service, and that his back pain has continued ever since. However, the August 2020 medical opinion found that there was no evidence that the Veteran’s back disorder was caused by service, as DJD and DDD are a part of the natural aging process and cannot be caused by a strain, even when taking into account the Veteran’s statements regarding onset and continuity of symptomatology. A physician’s review of the claims file is not the determinative factor in assigning probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Board finds that the August 2020 VA medical opinion was formed after a thorough review of the Veteran’s military service and personnel records, post-service treatment records, the Veteran’s lay statements, and was supported by a sufficient rationale. Id. Therefore, while the Veteran is competent to state that his back pain had its onset in service and continued thereafter, the findings and opinions of the trained medical professionals warrant greater probative weight in this case. Furthermore, the Board has also considered whether service connection for a back disability is warranted on a presumptive basis as a chronic disease. The competent evidence of record does not show that the Veteran’s diagnosis of back arthritis became manifest to a 10 percent degree or more within one year of separation from service, in July 1988. Therefore, presumptive service connection for arthritis as a chronic disease is not warranted. 38 C.F.R. § 3.309(a). Because the preponderance of the evidence is thus against finding that the Veteran has a back disorder that is etiologically related to his active duty service, including as based on onset within one year of separation from active duty, entitlement to service connection for a back disorder is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, 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.