Citation Nr: 21015916 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 11-33 181 DATE: March 18, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran’s back disability had its onset during active duty service, manifested within one year of separation from service, or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to August 1973. In February 2018, the Board denied service connection for a back disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In February 2019, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board’s February 2018 denial and remanded the matter to the Board for compliance with the instructions included in the parties’ JMR. The Board remanded the claim in August 2019 for further development by the RO, as consistent with the JMR. The case was returned to the Board for further appellate action. The Board finds that there has been substantial compliance with the August 2019 Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a back disability The Veteran contends that he is entitled to service connection for a back disability resulting from a kick to the low back he received during basic training that sent him to the hospital and resulted in back pain ever since. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Alternatively, service connection may be presumed for certain chronic diseases, to include arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in-service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. The Board finds that the Veteran’s back disability is not related to the in-service injury or had its onset in or within one year of service, and the preponderance of the evidence is against a finding of any continuity of symptomatology. Thus, a denial of an award of service connection is warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran’s service treatment records (STRs) do not contain any record of complaints, treatment, or diagnosis of back pain or a back injury during service. The STRs are not otherwise suggestive of back pain or a back disability during service. The June 1973 exit examination indicates the Veteran reported no arthritis or recurrent back pain, and the examination noted a normal spine. The records obtained from Womack Army Medical Center also contain no record of complaints, treatment, or diagnosis of back pain or a back injury during service. Pursuant to the JMR, which noted Veteran’s testimony at the February 2017 Board hearing that he was hospitalized there following the in-service back injury, the Board requested and obtained records of treatment from Womack Army Medical Center for the year 1968. See January 2020 VA Form 21-3101. These records indicate that the Veteran was hospitalized in December 1968 for an upper respiratory infection. There is no mention of back pain or any back-related symptoms or injuries. There are no medical treatment records on file dating from the Veteran’s separation in June 1973 until January 2009. The Veteran’s first complaint of low back pain of record is from January 2009, when the Veteran reported having low back pain since age 17. A November 2009 VA treatment record notes a diagnosis of low back pain, degenerative joint disease (DJD), and spondylosis of the lumbar spine. See also July 2017 VA examination (noting the onset of spondylosis in 2009). As the Veteran was not treated for or diagnosed with any back disability until decades after service and the STRs contain no record of complaints of or treatment for back pain or a back disability, the Board finds that the weight of the evidence is against a finding of an onset of a back disability during or within a year of service, or of any continuity of symptomatology. Service connection for a back disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s back disability and service. 38 U.S.C. §§ 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran underwent a VA examination in July 2017. The examiner opined that the back disability was less likely as not related to service. The STRs did not contain any treatment records for the back and the exit examination indicated no recurrent back pain. The Veteran reported that he was hospitalized for two weeks following an incident where he was kicked in the back while doing push-ups and had back pain ever since. The records noted hospitalization for a respiratory infection without any mention of back pain. Furthermore, there are no medical records between 1973 and 2009, when the Veteran was first treated at VA. The Veteran underwent a second VA examination in January 2021. The examiner noted in detail the Veteran’s statements about the kick during basic training, the hospitalization at Womack Army Medical Center, and being told he had a lumbosacral strain. The Veteran reported having back problems since that time. He could not finish basic training due to his back pain but could not recall any specific treatment. Upon his return following break, he was unable to perform basic training duties. Consequently, he was sent to Fort Sam Houston to train as a medic and completed his contract thereafter. He reported not seeking any treatment following separation. He also denied any other injury to the back or having to do any heavy lifting in his career as a restaurant manager. He began going to the VA in 2009. The examiner opined that the back disability was less likely than not incurred in or caused by the claimed in-service injury or event. The examiner noted that the Veteran reported an injury and that there was no record of the injury. The Womack Army Medical Center records indicate that he was treated in 1968 for a respiratory infection but there is no indication of a back injury. There is no evidence of treatment for a back injury or lumbar spine condition during active duty. His separation exam of June 1973 was normal and silent or back pain or a lumbar spine disability. He reported no recurrent pain. The clinician indicated that there were no physical or mental defects which warranted a medical disposition. There are no private treatment records showing a diagnosis of lumbar spine injury within the first year following discharge. There are no private treatment records evidencing a continued lumbar spine, back injury or back pain disability following separation. He sought VA care in 2009 and complained of low back pain. An x-ray of the lumbar spine showed moderate diffuse anterior marginal osteophytes and facet arthropathy. The thoracic spine also demonstrated moderate anterior osteophytes. There was no evidence of an old injury. The examiner found that the Veteran’s x-ray findings are more consistent with the general effects of aging and wear and tear. There is no radiographic finding that would suggest an old injury. The examiner found that diffuse osteophytes and facet arthropathy would not be a likely consequence of a kick to the back. While there is no evidence for the claimed injury to the back, the examiner found that the fact that the Veteran was able to complete four additional years of unrestricted active duty with no evidence of any back pain or lumbar spine complaints would make it unlikely that any such injury was associated with long term sequelae. The examiner found that there is simply no evidence and no nexus showing the continuity of complaint or treatment for back pain from the time of the asserted injury to the present. The Board acknowledges the lay statements of record, and the assertion that the Veteran’s back disability is related to service. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. He does not have the requisite specialized knowledge, training, or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Thus, although the Board has carefully considered the lay contentions of record suggesting that his back disability began during service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinion. Consequently, the Board affords more probative weight to the competent medical evidence of the July 2017 and January 2021 VA examination reports. Here, the Board finds that the VA medical opinions are based on an accurate medical and lay history as well as medical documentation provided in the claims file, to include the Veteran’s STRs and VA treatment records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). Additionally, the Board notes that neither the Veteran nor his representative have presented or identified any contrary medical opinion or treatment record that supports his claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for a back disability is not warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.