Citation Nr: 21012028 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-18 555 DATE: March 3, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. FINDING OF FACT The competent, probative evidence of record does not relate the Veteran’s lumbar spine disorder to service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from August1967 to April 1970. In April 2018, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In August 2018, the Board remanded this matter for additional development and consideration. The requested actions have been completed and the matter is once again before the Board. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include arthritis, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for an enumerated “chronic disease” listed under 38 C.F.R. § 3.309 (a) can also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The Veteran is seeking service connection for a lumbar spine disorder that he believes is due to his military service. Specifically, he alleges that he slipped and fell while pushing an aircraft in 1969, which resulted in treatment while at a field hospital in Dalat, Vietnam, and light duty. See June 1981 Statement In Support of Claim; see also August 2011 C. Belle Statement in Support of Claim; see also April 2018 Board Hearing Testimony Transcript. The Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the lumbar spine (see VA May 2019 Back Conditions Disability Benefits Questionnaire (DBQ)), which satisfies the first element of service connection, a current disability, the preponderance of the evidence is against finding that the disorder is related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Turning first to the theory of presumptive service connection for the diagnosed degenerative arthritis, the evidence does not show that he was diagnosed with arthritis either in service or within one year after separation, which would be by 1971. In fact, a February 1972 VA examination report, which included x-ray findings failed to show a diagnosis of arthritis and only noted slight scoliosis of the lumbar spine. Similarly, September 2006 x-rays failed to show a diagnosis of arthritis. Indeed, it was not until October 2015 that x-ray findings confirmed arthritis of the lumbar spine. See October 2015 VA X-rays. Therefore, service connection pursuant to 38 C.F.R. § 3.309 is not warranted. Turning to the remaining theory of direct service connection, the Board notes the Veteran’s service treatment records fail to show any treatment, complaint, or diagnoses pertaining to the lumbar strain. Further, there is no indication the Veteran was ever placed on light duty as a result of an in-service injury, as both the Veteran and the lay witness, C. Belle, alleged. See April 2019 Board Hearing Testimony Transcript; see also August 2011 Statement in Support of Claim. Further, the April 1970 Separation Examination is completely silent regarding any treatment or diagnoses pertaining to the lumbar spine, or any reference to light duty. The Board also notes the August 2018 Board remand requested that the RO obtain in-patient clinical records for back treatment in 1969 from the Dalat, Vietnam field hospital, which is where the Veteran has alleged that he received treatment following an in-service injury. However, an April 2019 Department response determined these records were not available based on the information provided. See April 2019 Correspondence. Following service, the Veteran first filed a claim of entitlement to service connection for a back disorder in 1972. At that time, a VA examination report noted a diagnosis of slight scoliosis. See February 1972 VA Examination. The VA examiner recounted the Veteran’s statement as to how he was injured while in service. A March 1972 VA treatment record shows a diagnosis of lumbar strain, however, an etiological opinion was not obtained. The 1972 claim was ultimately denied due to a lack of in-service incurrence. Similarly, the Veteran’s VA treatment records dated both prior to and throughout the pendency of this appeal period note complaints of back pain and treatment for such. Specifically, a June 2001 VA treatment recounts the Veteran’s history of a prior back injury, but no specifics were provided. An October 2015 VA x-ray notes chronic intermittent low back pain and degenerative changes likely consistent with age. As to the determinative issue of causation, the Veteran submitted a May 2018 medical opinion from Dr. J.O. that found that the Veteran has ongoing radiculopathy that is causing his pain. Dr. J.O. clarified that he began seeing the Veteran earlier that month, which would be in May 2018, and concluded the diagnosed radiculopathy is from his self-reported in-service injury. However, as this statement does not actually contain an etiological opinion, the Board finds it is inadequate for rating purposes. In response to the Board’s August 2018 remand directives, the Veteran was scheduled for a May 2019 VA Back Conditions DBQ. This examination only contained the diagnosis of degenerative arthritis and did not include an etiological opinion. Thereafter, a July 2020 VA Medical Opinion was obtained. The VA examiner considered the Veteran’s report of his in-service injury, as well as the accompanying buddy statement from C. Belle supporting the Veteran’s contention that he suffered a "pulled back muscle" while moving an aircraft. Given the lay reports and the fact the Veteran filed a claim in 1972, the examiner acknowledges that it is likely the Veteran did have some amount of low back strain arising in service. However, the examiner noted there was no further documentation of this low back condition. The examiner further stated that degenerative disease of the spine occurs in greater than 50 percent of men over the age of 50, regardless of antecedent events or chronic conditions, and there is nothing to suggest a link between the low back pain in service and degenerative spine disease, which probably had its nexus in 2011. Therefore, it was concluded that it is less likely than not the diagnosed back condition of degenerative spine disease had its nexus in service or is related to the incident in-service while moving aircraft. See July 2020 VA Medical Opinion. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the service connection claim. The May 2019 VA examination report and subsequent July 2020 VA Medical Opinion, in combination, included a comprehensive clinical examination and evidentiary review and indicated familiarity with the Veteran’s pertinent medical and lay history. Thereafter, the July 2020 VA examiner, who authored the addendum opinion, noted that, even assuming the in-service injury as reported by the Veteran and substantiated by the lay statement, there was no evidence attributing the claimed disorder to that injury and, instead attributed the condition an alternative, post-service cause. There are no adequate favorable opinions of record. Notably, the Board has considered continuity of symptomatology. Continuity of symptomatology is established if a claimant demonstrates (1) a condition “noted” during service; (2) evidence of post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptoms. Id.; see 38 C.F.R. § 3.309(a) (2020); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (“Whether lay evidence is competent and sufficient in a particular case is a fact[ual] issue to be addressed by the Board.”). Continuing symptoms, not treatment, must be the focus of the evidentiary analysis. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). A condition is “noted” in service where evidence is “indicative of but not dispositive of a chronic disease.” Walker v Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). However, the diagnosed disorder, arthritis of the lumbar spine, was not confirmed until October 2015, which is approximately 45 years after separation from service. See again October 2015 VA X-rays. At the time of the x-rays, the VA treating physician even noted the degenerative changes were likely consistent with age. Regardless, there has been no evidence that this disability was noted in service, which precludes alternatively establishing service connection based on continuity of symptomatology. In fact, the only evidence offered in support of his claim, that his lumbar spine disorder is due to his military service as a result of an injury sustained therein are the Veteran’s own statements, to include during his prior Board hearing testimony; the August 2011 statement from C. Belle, who identified himself as the Veteran’s PLT SGT at the time he was a witness to the Veteran’s back injury; and, a July 1981 statement from the Veteran’s mother and father. To this extent, the Board notes that these lay witnesses are competent to describe the symptoms associated with the claimed disorder, such as pain and noticing a physical difference in the Veteran, which are readily observable by laypersons. See April 2018 Board Hearing Testimony Transcript; see also July 2011 and July 1981 Statements in Support of Claim. However, as lay persons, the Veteran and the lay witness have not shown that they have specialized training sufficient to render such an opinion as to the etiology of his diagnosed disorder of arthritis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of orthopedic disorders, such as is the case here, requires medical testing to diagnose and medical expertise to determine the etiology. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.