Citation Nr: 21012391 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-19 570 DATE: March 4, 2021 ORDER Service connection for a lumbar spine disability is denied. Service connection for a right leg disability, to include as secondary to a lumbar spine disability, is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability is not etiologically related to active service: a chronic lumbar spine disability was not present in service and did not manifest to a compensable degree within one year of service discharge; and the most probative evidence does not relate the Veteran’s lumbar spine disability to service. 2. A right leg disability is not etiologically related to active service: a right leg disability was not present in service and did not manifest to a compensable degree within one year of service discharge, and the most probative evidence does not relate any right leg disability to service. The Veteran is not service connected for a lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a right leg condition have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to May 1981. These matters come to the Board of Veterans’ Appeals (Board) from a March 2012 rating decision. In May 2015 and November 2019, the Board remanded these claims for further development. The Board finds there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows it was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to establish direct service connection, three elements must be established. There must be medical, or in certain circumstances, lay evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2015); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may 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). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). There is a rebuttable presumption of service connection for certain chronic diseases, including arthritis, if the disease manifested during service or to a compensable degree (a degree of 10 percent or more) within one year of separation from active service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309(a). If a chronic disease is shown in service or within the requisite time period described in 38 C.F.R. § 3.307(b), subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Where chronicity during service or within the presumptive period is not, in fact, shown, then a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements of service connection. See Savage v. Gober, 10 Vet. App. 488, 495-496 (1997). The theory of continuity of symptomatology does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Service connection for a lumbar spine disability is denied. 2. Service connection for a right leg disability, to include as secondary to a lumbar spine disability, is denied. The Veteran asserts service connection is warranted for his back condition because during active service, he suffered an injury to his back and has suffered from back pain since that time. See January 2011 Buddy Statement; see also April 2012 Buddy Statement and July 2013 VA Form 9. The Veteran also asserts service connection for a right leg disability. Initially, the Board observes the evidence of record shows a disability of right lower extremity radiculopathy that is caused by his back disability. Post-service, a January 2020 VA back examination report shows the Veteran reported that during active duty, he injured his back while loading a truck with ammunition at Fort Stewart. He recalled he then went to sick call and received an injection before injuring his back a second time. As a result of his second injury, he recalled he was put on therapy with ice and massage for two weeks. The Veteran further reported that after separation, he experienced some additional back episodes that he sought treatment for and received an MRI. The examination report notes the Veteran’s degenerative arthritis of spine was diagnosed in 2015, intervertebral disc syndrome in 2020, and radiculopathy of right lower extremity in 2020. In January 2020, a VA examiner found the Veteran’s lumbar spine disability was less likely than not incurred in or caused by the Veteran’s active service. The examiner found the Veteran’s back and right leg disabilities were acute per the Veteran; however, they found no documentation of an acute back or right leg disability within the Veteran’s service medical records. The examiner also found there were no records for treatment of a back disability after separation from active service to show that a lumbar spine disability or right leg disability manifested during service or to a compensable degree (a degree of 10 percent or more) within one year of separation from active service or to show chronicity of care. In another statement from January 2020, a VA examiner states that other than buddy statements, the examiner found no other information regarding the Veteran’s back pain as it relates to his claim for service connection. The examiner also notes the Veteran has been seen by private physicians since separating from active service, which could show chronicity of care, but he has not provided those records of care to VA. An addendum opinion was obtained in August 2020. The examiner states they found no evidence the Veteran was seen for or had any treatment for back pain during active service, and the post-service treatment records show treatment many years after separation from active service. The examiner acknowledges that the lay evidence, including the buddy statements, speak to the Veteran’s injury and symptomatology. However, the examiner also highlights the evidence of record shows the Veteran did not seek outside medical care for his back until 30 years after active service, and therefore, there is no chronicity of care and no evidence to show the Veteran’s back disability is due to his active service. The Board finds that the Veteran’s assertions that he injured his back and right leg in service to be credible as his statements are supported by lay statements submitted by his wife and friend as well as are consistent with the circumstances of his service. However, the VA examiner clearly found that these injuries per the Veteran’s description were acute in nature. Moreover, there is no evidence of record to show the Veteran’s arthritis of the spine was noted in service or within a year of separation from service. The Veteran’s service treatment records do not show evidence of complaints of, treatment for, or diagnosis of a back condition. In fact, the Veteran’s February 1981 Report of Medical History on separation shows he denied using a back brace or back support, having had arthritis, or having had recurrent back pain. On examination, the Veteran’s spine and musculoskeletal systems were found to be normal. No neurologic abnormalities were found. Moreover, the Board finds the assertions of continuing symptomatology to not be credible as they are internally inconsistent with the Veteran’s reports in contemporaneous treatment records, which showed that he expressly denied any back problems upon separation. Moreover, he first reported back problems in October 2010, 19 years after his separation from service and well outside the presumptive period. Importantly, at the September 2015 VA examination, the Veteran himself reported that he had not been to any physician for back pain until 2014, 23 years after his separation from service. The absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Here, the Board does not find that the lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”). Rather, the current lay statements are found to lack credibility because they are inconsistent with and directly contradicted by other lay and medical evidence of record, including the Veteran’s own statements, showing that the Veteran did not seek treatment until many years after service. See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board’s finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). Accordingly, service connection is not established based on chronicity in service or a continuity of symptoms after service and is also unwarranted on a presumptive basis for arthritis that manifested to a compensable degree within one year of separation. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). However, service connection may still be awarded based on a nexus for direct service connection or secondary service connection. Nevertheless, in this regard, the January 2020 VA examiner found the Veteran’s lumbar spine disability was less likely than not incurred in or caused by the Veteran’s active service. The Board notes that a VA examiner must consider the Veteran’s lay statements regarding the incurrence of a disorder and the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Nevertheless, in the present case, the finding of the lack of treatment for many years does not render the opinion inadequate. Significantly, as discussed above, the Board finds that the Veteran’s lay statements regarding continuity to not be credible. Implicit in the examiner’s rationale was that if the Veteran’s symptoms had been present, he would have sought treatment earlier. Moreover, “there is no reasons or bases requirement imposed on examiners.” Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Rather, an adequate medical report must rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question and facilitate the Board’s consideration and weighing of the report against any contrary reports. See Nieves-Rodriguez, 22 Vet. App. at 304 (2008) (holding, in the context of weighing one medical opinion with another, that “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion”). The Board finds the VA examiner’s finding highly probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include its thoroughness and detail). Furthermore, the January 2020 VA back examination notes right lower extremity radiculopathy in relation to the Veteran’s back disability. However, since the service connection claim for a lumbar spine disability is denied herein, any secondary service connection claims based on that same claim must also be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In making these findings, the Board is cognizant of the lay statements of the Veteran as well as his wife and friend, regarding a nexus between his in-service back injury and active military. In this regard, the Board finds they are not competent as to a nexus. Although it is error to categorically reject a lay person as competent to provide a diagnosis or nexus opinion, not all such questions are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Since they are lay persons, their opinions that the Veteran’s current back condition is related to his in-service symptoms and injury is not competent evidence because given the long period of time that elapsed between service and the Veteran’s current back diagnoses, such a determination cannot be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As such, the lay statements pertaining to these issues are not competent lay evidence. Regardless, these assertions are outweighed by the medical evidence of record, which shows a back disability first occurred many years post service. In sum, there is no probative evidence of record showing the Veteran’s current back disorder or his current right lower extremity radiculopathy had their onset during service or is related to any incident of service. Because the preponderance of the evidence weighs against the Veteran’s claims, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.