Citation Nr: 21013621 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-58 120 DATE: March 10, 2021 ORDER Entitlement to service connection for low back disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that low back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1962 to August 1965 and from June 1991 to December 1991. The Veteran had additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the National Guard. While status as a “veteran” does not attach to general service in the National Guard, status as a “veteran” attaches to the periods of active duty. The Veteran testified at a March 2020 videoconference hearing before the undersigned Acting Veterans Law Judge. At the Board hearing, the Veteran was notified of the reasons for the denial of his claims by the Agency of Original Jurisdiction (AOJ) and of the evidence necessary to substantiate the claim. A transcript of the hearing has been associated with the record. In August 2020, the Board remanded the claim of entitlement to service connection for low back disability for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board remand instructed the AOJ to obtain the Veteran’s VA treatment records from February 2016 to the present. The AOJ complied and associated the records with the claims folder. The remand also instructed the AOJ to send the Veteran a request letter to complete a VA Form 21-4142, and then to make two requests for authorized records from any physician or facility where the Veteran sought treatment for his low back disability. The request letter informed the Veteran that the claim would be adjudicated based on the evidence of record if he did not respond within 30 days. To date, the Veteran has not completed the VA Form 21-4142. Through his representative in a January 2021 Informal Hearing Presentation it was acknowledged the form was not signed and presumably would not be signed as the “2016-2020 VA treatment records show the [Veteran] sought treatment for chronic low back pain, lumbar disc disease, spinal stenosis, radiating pain to the left leg, and radiculitis.” Thus, the Board finds that there was substantial compliance with its remand instruction. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the “duty to assist is not always a one-way street” and the Veteran is obliged to cooperate in the development of his pending claims. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board will decide this matter based on the evidence of record. 38C.F.R. §3.655(b). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service connection law and regulations VA law provides that, for a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for low back disability The Veteran contends that he has a low back disability which is related to a motor vehicle accident that occurred during his active duty service in approximately 1991. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records (STRs) do not contain complaints, treatment, or diagnosis for the claimed condition. Military personnel records are silent as to any parachute injuries or motor vehicle accidents, particularly in 1991/1992. VA treatment records show the Veteran was diagnosed with degenerative disc disease (lumbar spine) in 2011, more than 19 years after separation from his last period of service. The Veteran underwent a VA examination in February 2016. The VA examination report noted review of STRs, service personnel records, and medical records, recounted the Veteran’s complaints and history, and included an in-person examination. The Veteran reported daily intermittent pain in the entire low back as well as adjacent muscles. Symptoms included tingling and cramps in the legs. He walks daily for a few miles and continues to see a chiropractor bi-weekly. No flare-ups or functional loss were reported. The examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale included consideration that there is no documentation regarding any back condition throughout decades of service, to include parachute injuries and/or a motor vehicle accident. Moreover, the Veteran specifically denied “a back or neuropathy problem repeatedly throughout questionnaires through 2002 with normal spine exams.” Post-service, the Veteran engaged in years of heavy manual labor, brining into question whether he could have had a significant back disorder during that period. Lastly, the examiner stated that the Veterans current back condition appears related to age changes and post active duty activity. According to the examiner, there is no chronicity of back complaints shown in the patient records. After a review of all of the evidence, the Board finds that the criteria for service connection for low back disability are not met. The Board concludes that, while the Veteran has a current disability of degenerative disc disease of the lumbar spine, the Veteran’s low back disability did not begin during service, nor is it otherwise related to an in-service injury, event, or disease. With reference to presumptive service connection criteria above, the Board finds that there was not a notation of arthritis of the back in service; and, no manifestation of arthritis to a degree of 10 percent or more within one year of service separation. In fact, the diagnosis of arthritis was not until 2011. The Board acknowledges the Veteran’s statement that his chiropractor thought his back disorder “probably was due to that accident.” However, this is inherently inconclusive. General and inconclusive statements about the possibility of a link between a current disability and service injury are not sufficient to substantiate the nexus requirement. Beausoleil v. Brown, 8 Vet. App. 459 (1996); McLendon v. Nicholson, 20 Vet. App. 79, 85 (2000); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board has considered the Veteran’s lay statements regarding etiology. Specifically, his testimony during the March 2020 hearing that in 1991 while driving in Saudi Arabia he fell asleep, drove off the road, and crashed into a barrier injuring his low back. However, there is no indication in the STRs or military personnel records that the Veteran sustained a low back injury during his service. The Board notes that the Veteran consistently denied back or neuropathy problems during his periods of active duty service and subsequent examinations in the National Guard. While the Veteran is competent to report having experienced a motor vehicle accident in service, and to have engaged in other physically demanding activities consistent with military service, such as parachute jumps, he is not competent to relate current back arthritis to remote events in service. The issue is medically complex, as it requires knowledge of interpretation of diagnostic medical testing. Therefore, it is outside the competence of a layperson—the Veteran in this case—because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007). Lastly, the medical opinion offered in February 2016 is against the claim. The Board finds that the medical opinion obtained in this case is adequate as it is informed by the Veteran’s statements, his STRs, and his post-service treatment records. The examiner provided a physical examination of the Veteran and a discussion of the pertinent evidence and medical principals. The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). In sum, the Board finds that the claimed low back disability is not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. LLOYD CRAMP Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.M. Edwards, 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.