Citation Nr: 21014916 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 20-04 727 DATE: March 16, 2021 ORDER Service connection for a low back disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s current low back disability began during active service or is otherwise related to service. CONCLUSION OF LAW The criteria for an award of service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1952 to July 1956. This matter comes to the Board of Veterans Appeals’ (Board) on appeal from a February 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This case was previously before the Board in May 2020 and October 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. On both occasions, after taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for low back disability is denied. The Veteran seeks to establish service connection for a low back disability. He believes that he has a current disability that started in service as a result of multiple injuries playing football. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by: (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease; or, (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Every veteran who served in the active military, naval, or air service after December 31, 1946 is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only those conditions recorded in examination reports can be considered as “noted,” 38 C.F.R. § 3.304(b), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). If a condition is not “noted” upon entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Generally, service connection may not be granted for congenital or developmental defects as they are not considered diseases or injuries for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9. In a service connection case involving a congenital condition, the Board must first determine whether the condition at issue is a defect or a disease. If the congenital condition is a “defect” (i.e., a structural or inherent abnormality which is more or less static in nature), the presumption of soundness does not apply and service connection must be denied unless the evidence establishes that a disability due to disease or injury that was incurred in service is superimposed on the congenital defect. If, on the other hand, the congenital condition is a “disease” (i.e., a condition capable of improving or deteriorating), then the Board must determine whether the presumption of soundness applies. See 38 C.F.R. § 3.303(c); see also Quirin v. Shinseki, 22 Vet. App. 390, 396-97(2009); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”); Monroe v. Brown, 4 Vet. App. 513 (1993); VAOPGCPREC 82-90. In Quirin, the United States Court of Appeals for Veterans Claims interpreted a VA General Counsel opinion to mean that “any worsening - any change at all - might demonstrate that the condition is a disease, in that VA considers defects to be ‘more or less’ static and immutable.” 22 Vet. App. at 394-95. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, there is no dispute that the Veteran has a current low back disability. Among other things, a June 2019 VA examination report clearly reflects a diagnosis of degenerative arthritis of the lumbar spine and intervertebral disc syndrome. Likewise, the Board acknowledges that the Veteran complained of low back pain during service. In October 1953, he presented for treatment of pain and tenderness in the lumbar spine after playing football. In February 1954, he was treated for what was described as mid-lumbar strain after lifting something two days earlier. In August 1955, he was assessed with a sprain of the lumbar area of the back following a football injury the prior evening. An October 1953 X-ray referenced a “congenital defect” of the lumbar spine at L4; however, enlistment and separation examinations gave no indication of abnormality. As to the nexus, or link, between the Veteran’s current disability and service, the Board notes that when he was examined for service separation in May 1956, he denied having recurrent back pain. In July 1956, within a year of separation, he filed a claim for service connection for a back disability. Thereafter, he underwent a VA examination in September 1956. Objectively, his spine was found to be normal. The examiner noted, in part: States he wrenched his back a few years ago and it doesn’t bother him in any way at all. He is a tall, slender, muscular young man. He is active, lithe and perfectly coordinated in all his movements He is of tall stature. The back muscles show excellent development. No spasm is present. Excellent range of motion laterally amounting to some 40 degrees. He can bend forward and touch his toes without any trouble. He makes no complaint during the exercise. Patrick Faber and straight leg raising tests are negative. No spasm of any of the back muscles. He states he has no trouble with his back so far as he knows. Private medical reports from October and November 1976 show that the Veteran, then age 43,was found to have old spondylolysis deformities at L3, “likely on the basis of old trauma, partially healed,” and that he had Schmorl’s node deformities at T12, L1, and L2 that reflected “old articular plate fractures.” Other findings included questionable spondylolysis at L5, degenerative change at L5/S1, and minimal spondylolisthesis of L5 on S1. VA treatment records dated in January 2015 again show that the Veteran’s low back was evaluated and found to be normal. Private treatment records dated in August 2015 show that he presented for treatment for low back pain. He reported that the onset of symptoms was in June 2015. A November 2017 private treatment record from Dr. D.J.M. noted that the Veteran reported having pain in his low back for decades, having originally injured his back playing football in the Air Force. The provider recorded clinical impressions of lumbar stenosis at L3/L4, L4/L5, and L5/S1 with neurogenic claudication and acquired lumbar spondylolisthesis at L3/L4 and L5/S1. As to the etiology of the Veteran’s condition, the provider opined that sustaining three injuries to the back as a young man “certainly could cause significant lumbar arthritis with stenosis and spondylolisthesis later in life.” Therefore, the Veteran’s current problems “could be related to the injuries that he sustained” in service. Unfortunately, the provider’s statements, framed in terms of what “could” be true, are too speculative to support an award of service connection. Therefore, the Board must assign them no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). During a June 2019 VA examination, the Veteran reported that he had had a history of mild low back pain since service and that it had gradually worsened over the years. After examining the Veteran and reviewing the record, the examiner opined that the Veteran’s current low back disability was less likely than not related to service. In support of that conclusion, the examiner noted that the Veteran’s separation examination was silent for any low back condition; the VA examination conducted in September 1956, following separation, also found no back condition; and there was no evidence of diagnosis or treatment for a back condition until 2015, more than 50 years after separation from the military. In December 2019, the same examiner offered an addendum opinion, which the Board has previously noted is, at least facially, internally inconsistent. On the one hand, the examiner noted that it would likely take “at least a year” following injury for X-ray findings of the type shown in 1976 (pertaining to bilateral spondylolysis, sclerosis, and other degenerative changes) to appear. On the other hand, the examiner appeared to discount a likely connection between the Veteran’s current disability and service because the condition was not found on VA examination in 1956, little more than a year following the Veteran’s lattermost in-service back injury in 1955. In addition, the examiner did not discuss the significance, if any, of the fact that a congenital defect was identified in service, or of the fact that no X-rays were obtained at the time of the 1956 VA examination. Following an August 2020 addendum opinion, the Board, in October 2020, remanded the matter again for failure to comply with the May 2020 remand directives. In October 2020, another VA addendum opinion was procured, which resulted in another unfavorable assessment as to nexus. After reviewing the record, the examiner opined that it was less likely than not that the Veteran’s current low back disability had its onset in, or was otherwise attributable to, his period of active service, including as a result of in-service trauma. In so doing, the examiner specifically addressed the notion that the Veteran may have had a low back disability prior to service. The examiner noted that although a “congenital defect” of the lumbar spine was detected on an October 1953 X-ray, that finding was merely “an incidental test finding of no clinical significance” and opined that it was not clear and unmistakable that the Veteran had a low back disability prior to service. The examiner based that conclusion, in part, on the Veteran’s enlistment exam clearly indicating a “normal” clinical evaluation for the spine. See October 2020 VA examination; August 1952 enlistment examination report. The opinion was also based on the Veteran’s own assertions, disputing that he had had any back problems prior to service. See September 2020 Statement in Support of Claim. Additionally, the examiner addressed 1976 X-ray findings which indicated evidence of “old trauma” and “old articular plate fractures.” The fact that Veteran stated that he had no back complaints upon separation, no finding of a back disability within one month of discharge after service, and no records of a back complaint until nearly 20 years after service, the examiner concluded that it was less likely than not that the Veteran’s current back disability had its onset in military service or within one year after service. Without other evidence, the examiner could only conclude that it was less likely than not that the Veteran’s current disability was the result of service. Inasmuch as the examiner’s opinion was based on an accurate understanding of the facts, and articulated reasons for the conclusion reached, the Board finds the opinion probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board has considered the Veteran’s statements in this regard. However, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to the etiology of a low back disability as it relates to injury or episodes of treatment decades earlier. In addition, to the extent that his current statements can be interpreted as alleging continuity of symptoms since service, such is inconsistent with what he reported during service, when he denied having recurrent back pain on separation, as well as what he reported during the subsequent VA examination in September 1956. As such, such an allegation would lack credibility. In any event, the Board finds the October 2020 VA examiner’s opinion the most probative piece of evidence on the matter. In view of the foregoing, the Board must find that the preponderance of the evidence is against the Veteran’s claim. The evidence does not establish that a low back disability was shown as chronic in service, or that it manifested to a compensable degree within the applicable presumptive period. Continuity of symptomatology is not established, and none of the competent, credible, and probative evidence indicates that the current disability had its onset in or is otherwise related to service. The Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board is appreciative of the Veteran’s faithful and honorable service, given the record before it, the Board must find that his current low back disability is not shown to be etiologically related to any disease or injury during service. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph T. Leonard, Law Clerk 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.