Citation Nr: 21011481 Decision Date: 03/02/21 Archive Date: 03/01/21 DOCKET NO. 15-25 024 DATE: March 2, 2021 ORDER Service connection for a back disability is denied. FINDING OF FACT The Veteran’s back disability did not onset in and was not related to his service. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to September 1976 and November 1990 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA). The Veteran passed away in January 2016. The Appellant is the Veteran’s spouse. In October 2015, the Veteran and the Appellant testified at a Board hearing before a Veterans Law Judge (VLJ) no longer at the Board; a transcript of that hearing is of record. In January 2018, the Veteran was offered the opportunity to testify at a hearing before another VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Because the Appellant responded that she did not wish to appear at another Board hearing, the Board will proceed with adjudication. This case was remanded in October 2018 for further development; it has since been re-assigned to the undersigned. The October 2018 Board remand directed the AOJ to obtain outstanding treatment records and a VA etiology opinion. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268, 1998. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In the absence of a current diagnosed disability, service connection cannot be granted for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. See Gilbert, 1 Vet. App. at 55. The Appellant contends that the Veteran’s back disability is related to his service. Specifically, she contends that this disability is related to a 1976 in-service injury. At his Board hearing, the Veteran testified that he injured his back in service in 1976. His foot slipped while he was pushing heavy pallets off an aircraft and pulled his back. He did not seek treatment at the time due to the stress of his duties. In 1997 the Veteran was unable to walk and went to a doctor and chiropractor. The Veteran’s former representative stated that the Veteran had symptoms since the 1976 incident and manages it conservatively on his own. At the outset, the medical evidence of record notes diagnosis and treatment for multiple back disabilities, including lumbosacral strain, degenerative arthritis of the spine, and invertebral disc syndrome. While there is evidence of a back disability, there is no competent evidence of a nexus to service. The Board notes that the analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. The Appellant should not assume that evidence that is not explicitly discussed herein has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The Veteran’s service treatment records (STRs) include a January 1976 note that the Veteran experienced low back pain associated with lifting bags on the flight line. The Veteran was treated with a heating pad, back board, and no work for 48 hours. Subsequent medical examinations and reports of medical history in 1976, 1977, 1980, 1990, 1991, and 1996 note normal spine and no recurrent back pain. The Veteran’s VA treatment records show a diagnosis and infrequent treatment for a back disability beginning in 2001. An August 2001 chest x-ray revealed mild degenerative changes of the thoracic spine. A July 2003 x-ray revealed mild degenerative changes with mild narrowing of C6/C7 interspace. November 2008 VA treatment records note lower back pain. A January 2018 CT scan revealed degenerative changes of the spine. Pursuant to the October 2018 Board remand, a VA opinion was obtained in August 2020. The examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The opinion notes that the Veteran was evaluated on January 13, 1976 for low back pain associated with lifting bags on the flight line. The Veteran was treated with a heating pad, back board, and no work for 48 hours. The Veteran had multiple reports of medical examinations noting normal spine (1976, 1977, 1980, 1991, 1996) and multiple reports of medical histories (1968, 1976, 1977, 1996) marking no to recurrent back pain. The claims folder is silent for repetitive thoracolumbar complaints or evaluations. The Veteran’s thoracic arthritis was diagnosed incidentally on chest x-ray in 2003 and the lumbar spine arthritis was identified on CT abdomen/pelvis in 2016. Both the thoracic and lumbar spine arthritis were not diagnosed during active duty and are unrelated to service as the diagnoses were rendered greater than 10 years post service. The Board finds, upon review and consideration of the evidence of record, including but not limited to that set forth above, that the preponderance of the evidence weighs against finding that the Veteran’s back disability is at least as likely as not to have been incurred during his active service or as a result of the above-referenced in-service injury. The Board finds the August 2020 VA examination opinion that indicates that the Veteran’s back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness to be highly probative. The examiner fully reviewed the Veteran’s claims file and medical records and provided sufficient rationale for his opinion. Further, the Veteran’s STRs reflect that his in-service back problems were not chronic. His recurrent medical examinations and reports of medical history reporting normal spine and no recurrent back pain indicate that his in-service back injury had resolved. Although the Veteran’s representative stated the Veteran had back symptoms since the 1976 incident, the Board finds this is not corroborated by the evidence of the record. The Veteran repeatedly denied issues with his back in service and the probative evidence of the record indicates that his current back issues did not onset in service. Throughout the appeal period, the Veteran and Appellant reported that his back disability is related to his service. However, a thorough review of the medical evidence of record does not show a nexus of the Veteran’s back disability with the Veteran’s service. While the Veteran is competent to report symptoms that he perceives, he is not competent to render a diagnosis or medical opinion concerning the etiology of a medical disorder. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). Finally, while service connection may be granted for diseases such as arthritis under 38 C.F.R. § 3.309(a), the disease must have manifested within one year after separation from service. In this case, there is no probative evidence that indicate complaints of back pain within that year following separation from service. Thus, service connection for a back disability, to include degenerative arthritis of the spine, is not warranted. In sum, while there is a current disability, there is no competent, credible, and probative evidence that establishes that the disability incurred in service. As such, the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See Gilbert, supra. Therefore, the claim is denied. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.