Citation Nr: 21012325 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-34 579A DATE: March 4, 2021 ORDER Entitlement to service connection for a lumbosacral spine disability, to include lumbosacral strain, bulging discs and degenerative arthritis, is denied. FINDING OF FACT The preponderance of the evidence is against finding that a lumbosacral spine disability, to include lumbosacral strain, bulging discs and degenerative arthritis, began during active service or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a lumbosacral spine disability, to include lumbosacral strain, bulging discs and degenerative arthritis, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1989 to January 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. In July 2018 and December 2019, the issue was remanded for additional evidentiary development. Entitlement to service connection for a lumbosacral spine disability. 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; 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 disability 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). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. To show a chronic condition in service, a combination of manifestations is required to sufficiently identify the disease’s entity, as well as sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 CFR 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 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. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that his lumbosacral spine disability is related to an injury he incurred during service. Service treatment records show that the Veteran sustained a lower back injury while performing a physical training (PT) test. See June 1994 service treatment records. Notably, a January 1999 radiology exam shows that the Veteran had chronic back pain, but his lumbosacral spine demonstrated normal alignment and his vertebrae, intervertebral disc, and articular structures were all unremarkable. See January 1999 service treatment records. The Veteran continued to seek treatment for back pain during service. See July 1999 service treatment records. Prior to his separation in January 2000, the Veteran received a permanent profile for chronic mechanical back pain and obesity. He was recommended to lose weight and refrain from lifting objects weighing over 40lbs. See September 1999 separation exam. Post-service records show that the Veteran sustained two back injuries while working as a delivery driver for FedEx in 2006 and 2008. See December 2008 private treatment records. The Veteran reported that while working for FedEx, he frequently lifted objects weighing between 1lb. to 30lbs. He also reported lifting objects weighing 50lbs. as well as objects weighing more than 75lbs., although objects weighing more than 75lbs. required two people. See November 2011 private treatment records. In December 2010, it was reported that the Veteran had lower back pain with small disc protrusion and bulging at the L4-L5 vertebrae, as well as mild bulging at the L5-S1 vertebrae. See December 2010 private treatment records. In March 2011, the Veteran reported daily decreased motion, stiffness, spasms, and dull-to-sharp spinal pain in his lower back that was moderate yet constant. See March 2011 VA treatment records. He also reported decreased mobility as well as problems with lifting and carrying objects. Imaging revealed that there were no fractures in the lumbar spine as disk spaces appeared to be well preserved. The Veteran was diagnosed with lumbosacral strain. Id. In July 2015, the Veteran reported irritable, chronic back pain that had lasted years. He further reported that the back pain was triggered by certain movements, such as bending over, and that the pain affected his sleeping and daily activities. See July 2015 VA treatment records. In October 2015, the Veteran reported a sharp, stabbing pain in his lower back with pain increasing while doing household chores, walking, and lying down. See October 2015 private treatment records. Social Security Administration (SSA) records show that the Veteran was given a back brace in 2012. See November 2015 private treatment records. The record contains several etiology opinions. An April 2014 private physician opinion by Dr. L. A. C. submitted by the Veteran, notes the Veteran’s complaints of back pain in service and that current MRI shows bulging discs. The physician stated that he “cannot attribute the above pathology directly to events that may have occurred while the patient was in the military service although these problems seemed to start during that period of time.” The physician further stated that there is a “50-50” probability that the Veteran’s back pain may have occurred while in service. He noted that the Veteran’s back pain may have been precipitated by carrying heavy equipment and that his morbid obesity is certainly a contributing factor. See April 2014 private opinion. While this opinion appears to be favorable to the Veteran, the Board cannot rely upon it because medical opinions expressed in such speculative language ("may be possible" and "could be") are inadequate and do not establish a plausible claim. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Moreover, the physician specifically stated that he could not attribute the pathology directly to military service. Given the speculative nature of the seemingly positive nexus opinion, the Board accords it no probative weight. The Board notes that the Veteran underwent a VA examination in August 2019. However, in the December 2019 Board remand the examination was found to be inadequate. As such, it will not be discussed any further. An addendum opinion was obtained in February 2020. The examiner, after consideration of the claim file to include the Veteran’s contentions, opined that the Veteran’s lumbosacral spine disability was less likely than not incurred in or caused by the claimed in-service injury as degenerative arthritis of the spine is consistent with normal and expected aging. See February 2020 VA examination. The examiner noted that the treatment for mechanical back pain (muscle spasm pain) during active military service was intermittent. The veteran's separation examination dated 2 December 1999 noted "severe back pains" per the veteran. The "abnormality" noted per spinal examination refers to "P2 profile MLBP". Otherwise, no specific physical spinal abnormality or chronic diagnosis is noted on the separation examination. The examiner further noted the Veteran’s back injuries while working for FedEx post service and that the changes noted to the lumbar spine in the MRIs postdate Finally, the VA examiner further explained that disc degeneration and accompanying arthritis is a common development; medical studies show that age related changes are present in 40 percent of adults over age 35 and in almost all individuals over age 50. Id. The February 2020 VA examiner was unable to comment on the adequacy of the April 2014 private opinion, reasoning that the April 2014 opinion presented no medical literature to cite for reference. Id. The Board finds that the February 2020 VA examination is adequate for appellate review. There is no evidence that the examiner was not competent or credible, and the report is based on the Veteran’s statements, in-person examinations and the examiner’s observations. The Board finds the February 2020 VA opinion substantially complies with the December 2019 remand directives concerning the nature and etiology of the Veteran’s lumbosacral spine disability and acknowledgment of the April 2014 opinion. The Board finds the February 2020 VA opinion is therefore entitled to significant probative weight. See Nieves-Rodriguez, at 302. The Board acknowledges the September 2020 private opinion that the Veteran’s back injury is more likely than not a service-connected condition. The examiner reasoned that the Veteran did not have any back issues when he first joined the military and moreover, initial and subsequent injuries to the Veteran’s back predated his post-military employment. See September 2020 private opinion. This opinion however fails to address the Veteran’s lower back injuries reported during his post-service employment with FedEx and is thus based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As a result, the Board finds the September 2020 opinion is inadequate and therefore not entitled to any probative weight. The Board has considered all of the Veteran’s statements and contentions. Though the Veteran is competent to report having experienced symptoms of back pain consistently since service, he is not competent to determine that these symptoms were manifestations of a lumbosacral spine disability related to service as the Veteran has not demonstrated the necessary medical expertise to render such opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board is therefore left with a singular competent etiology opinion of record, the February 2020 VA medical opinion which states that the current lumbar spine disability is not related to service to include the complaints of back pain reported therein. The opinion stands uncontradicted by any other competent opinion of record. Therefore, the preponderance of the evidence is against the claim of entitlement to service connection for a lumbosacral spine disability, to include lumbosacral strain, bulging discs and degenerative arthritis. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection is not warranted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus K. Jones, 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.