Citation Nr: 21014092 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-04 864 DATE: March 11, 2021 ORDER Entitlement to service connection for low back disorder is denied. FINDING OF FACT The weight of the evidence of record is against a finding that the Veteran’s low back disorder, to include degenerative joint disease (DJD), degenerative disc disease (DDD), or lumbar lordosis straightening, had onset in active service or is otherwise causally connected to active service. CONCLUSION OF LAW The requirements for entitlement to service connection for low back disorder, to include DJD, DDD, or lumbar lordosis straightening, have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 1154, 5107(b); 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Board denied this appeal in 2016, see 11/18/2016 BVA Decision, which the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In a November 2017 Memorandum Decision (11/13/2017 CAVC, 1st Entry, P. 53-58), the Court vacated the November 2016 Board decision and remanded it to the Board for further consideration consistent with the decision. The Board has twice remanded the case to comply with the Court remand. As discussed further below, the Board finds substantial compliance with the Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for low back disorder is denied. Applicable Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Arthritis is presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements in a claim involving a listed chronic disease is through a demonstration of continuity of symptomatology. An award of service connection based solely on continuity of symptomatology is limited to chronic diseases under 38 C.F.R. § 3.309(a). Cf. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); 38 C.F.R. § 3.303(d). “Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). The Board must fully consider the lay evidence of record. 38 U.S.C. § 1154(a); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno, 6 Vet. App. at 470 (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F. 3d at 1377. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Discussion The Veteran was a truck driver and heavy equipment operator in active service. At his hearing, he testified to two in-service incidents concerning his back. He testified that while on field maneuvers during his tour in Germany, he wrenched his back while working on a bridge when the other troops involved let go of a heavy item, but he held on. He reported further that he remembered being treated while in the field. The second incident involved an emergency room visit after he had undergone his physical examination for separation. He testified that he did not remember the specifics of his treatment prior to his separation, and that he may or may have been prescribed medication. Following his separation from active service, he worked for his father and continued to operate heavy equipment until he was involved in an accident in 2006. See 06/03/2016 Hearing Testimony. A physical examination for separation was conducted in September 1980 (his actual separation did not occur until January 1981). On his Report of Medical History, the Veteran denied any prior history of recurrent back pain. The Report of Medical Examination for ETS reflects that the spine was assessed as normal, and he was deemed physically fit for separation from active service. See 05/06/2015 STR-Medical, P. 2-6. In early November 1980 he pulled a muscle in the thoracic region and received treatment on two occasions. He reported symptoms times two weeks. Examination revealed moderate tenderness at the paraspinal muscle. He was placed on quarters for 24 hours and told to rest and use moist heat. He was prescribed Robaxin and was instructed not to lift more than 15 pounds. Id. P. 9. An entry dated a day later in November 1980 reflects that the Veteran had previously complained of pain at the right shoulder blade area times 3 days, for which he had been prescribed medication, placed on quarters for 24 hours, and had been assigned a profile for light duty for five days. The entry of that day noted complaints of having pulled his muscle again. Physical examination revealed the lungs as clear to auscultation-the Veteran moved air well. There was tenderness to palpation at the mid-thoracic region and full range of motion without difficulty. The diagnostic impression was muscle strain. He was to continue his previously prescribed medication, continue to apply heat and was placed on a four-day profile that restricted his lifting to no more than 10 pounds, and no physical training. There are no other entries related to the low back. Id. P. 7. The November 2013 VA back examination report (11/25/2013 VBMS-VA Examination) reflects that the examiner conducted a review of the claims file as part of the examination. The examiner noted current diagnoses of DJD, DDD, and straightening of lumbar lordosis shown on X-ray, without evidence of radiculopathy. Thus, the first requirement for service connection has been met, as a currently diagnosed low back disorder is established. The examiner noted the November 1980 entries in the STRs and the assessment of back pain due to a pulled muscle. The Veteran reported that he could not remember when his back pain started, and he denied use of a back brace. The examiner noted VA outpatient records that documented the Veteran’s treatment following a serious motorcycle accident (MVA) in 2006. Based on the physical examination of the Veteran and his review of the Veteran’s records, the examiner opined that it was not at least as likely as not that the Veteran’s currently diagnosed low back disorders had their onset in active service, nor were they causally connected to active service, to include the treatment documented in the STRs. The examiner noted that there were no complaints of back pain other than in the STRs until 2006, when the Veteran was involved in a serious MVA. The examiner noted that the accident was more than 20 years after active service. The examiner opined that the Veteran’s currently diagnosed low back disorders are a natural progression of the 2006 injury. Id. P. 12. In the November 2017 Memorandum Decision, Court determined that the examiner did not indicate awareness of the Veteran’s assertion that he injured his back while on field maneuvers in Germany (GE), of which the Veteran testified. Hence, the Court concluded that the examiner did not base the negative nexus opinion on consideration of the Veteran’s entire medical history, to include whether there was any interaction between the reported earlier injury while on field maneuvers and the November 1980 episode for which the Veteran was treated in the emergency room. Further, the Court determined that the examiner did not provide an adequate rationale, to include the failure to discuss the medical principles by which the examiner opined that the Veteran’s current low back disorder is the result of the natural progression of a low back injury sustained in a 2006 MVA, as opposed to the in-service events. As noted earlier, the Board remanded the case for additional medical input that addressed the concerns noted in the Court’s Memorandum Decision. An April 2019 addendum to the VA examination report did not address those concerns. See 04/16/2019 C&P Exam, 9th Entry. Hence, the Board remanded the case again in October 2019. See 10/04/2019 BVA Decision. The addendum report (01/09/2020 C&P Exam) reflects that the clinician again reviewed the claims file and opined that it was not at lease as likely as not that the Veteran’s currently diagnosed low back disorder had its onset in active service or is otherwise related to active service, as it is likely a progression of the low back injury sustained in the 2006 MVA. The examiner noted that the Veteran’s November 1980 in-service back strain was treated symptomatically, and there was no indication of further low back problems in service. The clinician opined further that the Veteran’s current low back symptoms can be explained by the 2006 MVA, which is shown by his medical records. The clinician opined that it was unlikely that a pulled muscle would result in DDD in 2013. Instead, age, subsequent trauma in 2006 and natural wear and tear are factors in the Veteran’s current lumbar spine condition. Id. P. 4. Upon review of the January 2020 addendum the Board determined that it was not clear that the clinician had considered the Veteran’s lay report of his history. Hence, the Board remanded again. See 11/23/2020 BVA Decision. The addendum report (12/19/2020 C&P Exam) reflects that the clinician reviewed the claims file, as did the prior medical reviewers, noted the Veteran’s in-service strain and opined that there is no documentation of chronic low back complaints until after the 2006 MVA. The clinician opined that, even accepting the Veteran’s report of an injury in the field while in Germany from 1977-1978, to connect the Veteran’s current low back disorder with that event would be speculative. The clinician noted that documents dated in January 2010 clearly show that the Veteran worked as a heavy equipment operator until his motorcycle accident in 2006. The clinician opined that it defies logic to conclude that the Veteran developed degenerative arthritis of the spine in the service without documented chronic complaints and then worked as a heavy equipment operator when multiple records show he stopped working as a result of his motorcycle accident. Hence, the clinician opined that the Veteran’s current low back condition is clearly a residual of the back injury sustained after his service. Id. P. 5. The Board finds that the two VA opinions, combined, address the concerns noted in the Court’s November 2016 Memorandum Decision; namely, that the Veteran’s lay report of his in-service injury in Germany was considered, along with whether it was quiescent and contributed to the 2006 injury, and the nature of the injury the Veteran sustained in 2006. The Board finds further that the December 2020 addendum reflects that the clinician reviewed the claims file and provided an explanation for the opinions rendered. Hence, the Board finds the opinions adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds further that the opinions are supported by the evidence of record. As the Board noted previously and discussed above again, the evidence of record fails to support a finding of continuity of symptomatology. This is true even when considering the hearing testimony provided in June 2016. Indeed, the Veteran’s testimony simply was not clear or definite enough to show continuous symptoms. Although the Veteran has asserted that he sustained a low back injury while serving in Germany, that would have occurred prior to 1980. As noted earlier, he denied any history of recurrent back pain in September 1980 when he underwent a physical examination for his separation from outpatient records. His outpatient records note short-term memory loss due to a traumatic brain injury (TBI) sustained in the 2006 MVA, not long-term. The VA outpatient records note the Veteran’s consistent reports that he had experienced low back pain since the 2006 MVA, in which his injuries included the hip and back. See 12/30/2013 CAPRI, P. 384, 506. The Veteran’s representative also asserted at the hearing that the STRs are incomplete because the Veteran did not undergo another physical examination after his November 1980 treatment noted in the STRs. The Board is not persuaded by the assertion, as the STRs document that the treatment was for back pain due to a muscle strain. Further, the November 2013 examination report reflects that the examiner considered the STRs as well as the Veteran’s outpatient records in forming his opinion. Moreover, the medical professionals have opined that a muscle strain in 1980 would not be the etiology for the Veteran’s current DDD and other lumbar spine pathology. Finally, as there is no showing of arthritis within the first post-service year an award of service connection on a presumptive basis or on the basis of continuous symptomatology is not for application. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran personally opines that his currently diagnosed low back disorder is causally related to his active service, to include in-service low back trauma, the Board finds that opining on an etiology for a lumbar spine disorder, especially years after the seminal event, requires medical training. There is no evidence that he has medical training. Hence, his lay opinion is not probative on the issue. See Kahana, 24 Vet. App. 428; see also 38 C.F.R. § 3.159(a). In light of all of the above, although the evidence shows a currently diagnosed low back disorder, in-service occurrence or a causal nexus to active service is not shown, as the Board finds further that the preponderance of the evidence is against both. Id. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 53; see also 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.