Citation Nr: 21013252 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-14 407 DATE: March 9, 2021 ORDER Entitlement to service connection for a back disorder, to include degenerative joint disease of the thoracolumbar spine, is denied. FINDING OF FACT The Veteran’s back disorder did not have its onset in service, is not otherwise related to an in-service injury, event or disease, and arthritis did not manifest to a compensable degree within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to September 1980, and from June 1981 to November 1989. He had additional service in the Reserves. This claim comes to the Board of Veterans’ Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) This case was previously before the Board in November 2018, when it was remanded for further development. 1. Back Disorder The Veteran asserts that he experiences a back disorder that is related to his active service. Specifically, the Veteran asserts that he injured his back while conducting physical fitness training in service and while performing the physically demanding work of a deck seaman. See claim, received by VA June 9, 2014. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as arthritis 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). The Veteran's post-service medical records show that the Veteran experiences a back disorder. Namely, the Veteran experiences lumbar degenerative joint disease of the lumbar spine and chronic low back pain. See Back Conditions Disability Benefits Questionnaire (DBQ), May 14, 2019. As such, the first element of service connection, a current diagnosis, has been met. As to the issue of in-service incurrence, the Veteran’s service treatment records do not show a diagnosis of a chronic back disorder. They do show that the Veteran was seen for reported low back pain and localized muscle spasms, and was given muscle relaxers. See Service Treatment Records, July 8, 1986; January 14, 1977. On his entrance and separation examinations, the Veteran denied any back issues or back pain. See Service Treatment Records. The Veteran denied having a history of recurrent back pain in his Reserves enlistment examination. See Service Treatment Records, September 26, 2000. The Veteran underwent an examination for his back in March 2013. See Back conditions DBQ, March 18, 2014. The examiner opined that the back disorder was less likely as not related to the Veteran’s active service. The examiner noted that the Veteran’s service records had two isolated clinical notes of muscle spasms of the lumbar spine in 1977 and 1986. The examiner added that degenerative joint disease of the spine is a chronic condition and is the result of progressive wear and tear, which is unlikely to be the result of two isolated incidents during military service. The examiner concluded that there was no chronicity of the lumbar spine condition throughout military service or immediately after separation. The Veteran underwent an examination for his back in April 2013, which was performed by a chiropractor. No opinion as to the etiology of the back disorder was issued. See Back conditions DBQ, April 14, 2013. X-rays showed mild degenerative changes in the thoracic spine. See Olympic Radiology, February 24, 2014. The Veteran underwent another back examination in May 2019. See Back conditions DBQ, May 14, 2019. The examiner opined that it was less likely than not that a back disability was incurred during the Veteran’s active service. The examiner related that, per review of the service treatment records, the Veteran was seen on January 14, 1977 and July 8, 1986 for acute back complaints, but there was objective evidence to support that he developed a chronic condition during service. The examiner reported that in-service medical examinations all documented a normal spine. The examiner acknowledged that the Veteran reported experiencing back pain during service, but that the evidence of record did not support development of a chronic back condition during service. The examiner stated that the service treatment records were silent for treatment for, or diagnosis of, any chronic back condition. The examiner also opined that it was less likely than not that the Veteran’s back arthritis manifested within a year of his separation (November 1989), as it was not until February 2014 that mild arthritis was documented in a lumbar spine X-ray. The examiner added that this was many years after discharge from active duty, making any connection unlikely. The examiner finally opined that it was less likely than not that a back disability was otherwise caused by, or related to, the Veteran’s military service, including wear and tear due to heavy lifting and other in-service activities. The examiner related that the evidence of record did not support development of any chronic back condition during service, and it was many years following service that the Veteran developed mild arthritis in his back, making any connection with active service unlikely. The examiner reported that the service treatment records documented a couple of acute visits for back pain, but were silent for diagnosis of, or treatment for, any chronic back condition immediately following service to the present. Private treatment records show that the Veteran saw a chiropractor for back pain, and received massage and stretching for his issues. There was no opinion issued as to the cause of the back pain. See private treatment records, July 15, 2013. Based on a review of the evidence, the Board finds that service connection for a back disorder is not warranted. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested arthritis to a degree of 10 percent within the one year following his discharge from service in 1989. In this case, degenerative disc disease of the lumbar spine was noted in a 2014 X-ray. As such, presumptive service connection is not warranted for arthritis. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. As for direct service connection, the Veteran was examined, following the November 2018 remand, in May 2019. The examiner found no connection between the Veteran’s current back disorder and his active service. The medical opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). It is afforded great probative weight. There is no contrary opinion of record. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a medical nexus. As a lay person, the Veteran is competent to report observable symptoms, such as having back pain. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability”); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. While the Veteran is of course competent to report having experienced symptoms of back pain, he is not competent to provide a diagnosis in this case or to determine that these symptoms are somehow related to his active service or any service-connected disabilities. This issue of diagnosing a back disorder is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence in this case. (Continued on the next page) In reaching the above conclusion, the Board has considered the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a back disorder, that doctrine does not apply. The claim of entitlement to service connection for a back disorder is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Sonja S. An Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.