Citation Nr: 21012105 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-29 299 DATE: March 3, 2021 ORDER Entitlement to service connection for a low back disability, including secondary to service-connected bilateral knee disorder, is denied. FINDING OF FACT The competent medical evidence reflects that the Veteran’s lumbar strain disability was not incurred in service or secondarily related to his service-connected bilateral knee disorder. CONCLUSION OF LAW The criteria for service connection for a lower back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.3.10. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1988 to October 1991, with additional service with the Army Reserves from October 1991 to June 1995. This matter is 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 issue was previously before the Board in August 2018 and remanded for further development. Specifically, the remand mandated that the attempt to obtain any outstanding treatment records, including from Dr. B. and the Dunn Internal Medicine Clinic in Dunn, North Carolina, dating from 2003-2006. In March and April 2019, the RO requested said records and notified the Veteran of its unsuccessful attempts. The Board finds that there has been substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In September 2019, an addendum VA medical opinion was obtained. The physician reviewed the claims file and provided a rationale for both the causation and aggravation prongs of a secondary service connection claim. The opinion is adequate for adjudication. In this regard, there has been substantial compliance. Id. Entitlement to service connection for a low back disability, including secondary to service-connected bilateral knee disorder, is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 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). Service connection may also 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). To establish service connection for the claimed disorder, there must be (1) 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Active military service includes any period of active duty for training (ACDUTRA) ACDUTRA in the Armed Forces is performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). INACDUTRA, on the other hand, is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Active military service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training during (INACDUTRA) which the individual concerned was disabled or died from an injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. § 101 (21) and (24) (2012); 38 C.F.R. § 3.6 (a) and (d). When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA for service connection to be granted. 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); Acciola, 22 Vet. App. at 324. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing before the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). To establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has been diagnosed with a chronic lumbar strain. He contends that it was incurred while in the Reserves, during a two-week training, and continued. He, however, did not seek medical opinion until 2003. In the alternative, he has argued that his back disability is secondarily related to his service-connected bilateral knee disability. The Veteran’s service treatment records (STRs) from March 1988 to October 1991 are silent for complaint, treatment, or diagnosis of any back disorder. Treatment notes dated in April 1995 note lower back pain for two days. He was assessed with a muscle spasm in the lower back. During a follow-up visit five days later, the Veteran reported that the back pain was still present. He was told to continue Robaxin and discontinue any heavy lifting. The post-service evidence of record contains a VA examination of June 2010. At the examination, the Veteran reported private treatment with a physician at Dunn Internal Medicine Clinic North Carolina since 2003. He stated that he injured himself while pulling a cargo trailer with other soldiers and that he continued to have pain in his back. Upon examination, the examiner noted a normal spine and diagnosed chronic lumbar strain. During a VA examination of December 2012, the Veteran reported that driving a truck for an oil company in the past months worsened his back symptoms. He again reiterated his treatment at Dunn Internal Medicine Clinic and that the orthopedist told him that he had minor degenerative changes of his lumbar spine. He received deep tissue massages, a home exercise program, a TENs unit, sports cream, and oral medication. The examiner diagnosed lumbar strain. In September 2019, the Veteran was afforded a VA medical opinion to determine the possible etiology of his lumbar strain. The medical examiner provided a negative nexus opinion to service and secondary to the bilateral knee disability. Regarding the direct service claim, the examiner explained that the Veteran was treated in service for the lumbar strain, which was acute and self-limited, and no chronicity had been demonstrated. She further explained that “ the examination of 2010 showed normal X-ray findings and no abnormal clinical findings 15 years after the symptoms in service. If those symptoms were related, [there] would have [been] abnormalities in the examination and/or in X-rays. The fact that none of this was present makes the nexus very unlikely. All current symptoms, and during the appeal time, were less likely than not related to the complaints in service. Addressing the secondary service connection claim, the examiner explained that the Veteran’s knee disability did not cause the Veteran’s back disability. She explained that weight-bearing joints could produce problems in the back by altering the axis of the body through long standing abnormal gait. However, there is no evidence of such before the onset of his chronic back symptoms. Additionally, during the examination in 2010, a normal gait was documented. As for whether his bilateral knee disorder aggravated his back disability, the examiner explained that there were no symptoms or signs of aggravation of the back by the service-connected knee disability because the back symptoms have followed the natural progression of the condition. After considering the record, the Board finds that service connection for a lower back disorder is not warranted on a direct or secondary basis. The record lacks any competent evidence of a nexus between the Veteran’s current back disorder and his period of service, including as due to or aggravated by his service-connected bilateral knee disorder. The Board finds the examiner’s conclusion most probative against a finding that the Veteran’s diagnosed lower back disability was incurred in service and continued, or was caused or aggravated by his service-connected knee disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion.). Further, there is not any competent medical evidence of record that contradicts the comprehensive findings of the VA examiner. The Board acknowledges that the Veteran’s April 1995 service complaint of back pain and the diagnosis of muscles spasm, and his August 2020 statement that he had an injury from a lifting accident involving other soldiers and that his back pain did not go away. However, the September 2019 VA opinion is more probative than the Veteran’s lay assertions. The Board acknowledges that the Veteran is competent to report observable symptoms, like back pain. The descriptions are also credible. The specific issue in this case, whether his currently diagnosed back disability is etiologically related to service or his service-connected knee disability, falls outside the realm of common knowledge of the Veteran. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Determining the etiology of his current lumbar strain is a medically complex task and is not within the competence of the Veteran who, in this case, have not been shown by the evidence of record to have the training, experience, or skills needed to diagnose and determine the etiology of his current lower back disorder. Further, his contentions were investigated by a medical examiner who found no relationship to service or his service-connected knee disability. The examiner specifically acknowledged a review of the entirety of the record and found no relationship between the April 1995 in-service diagnosed muscle spasm and his currently diagnosed chronic lumbar strain. The Board finds no competent medical or lay evidence that satisfies the nexus element of the service connection claim. Shedden, 381 F.3d at 1166-67. Accordingly, the preponderance of the medical evidence of record is against finding that the Veteran’s lumbar strain was incurred in service or in any way related to his service, including secondary to his service-connected bilateral knee disability. Therefore, service connection is not warranted for a lumbar strain disorder. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claims, the doctrine is not for application. Gilbert, 1 Vet. App. 49 (1990).). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.