Citation Nr: 21020921 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-44 046 DATE: April 8, 2021 ORDER Service connection for a back disability is denied. FINDING OF FACT No nexus opinion or chronic condition is found to support the Veteran’s claim of service connection for his back disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from April 1968 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) from an initial April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In a January 2020 decision, the Board remanded the issue for further development and a new VA examination. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The matter returned to the Board in September 2020 and was remanded again for further development and a new VA medical opinion. The matter returned to the Board in March 2021. The Board is now satisfied that there was substantial compliance with its remand orders and is prepared to fully adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a back disability The Veteran contends that he is entitled to service connection for a back disability. Specifically, the Veteran suffered a lumbar strain in service. He now contends that his current back conditions are connected to the injury suffered in service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be presumed for certain chronic diseases, such as arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the 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). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required 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 or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. §3.303(b). Here, the Veteran has a current disability. In 2013 the Veteran was diagnosed with lumbar spine degenerative disc disease and in 2017 the Veteran was diagnosed with thoracic spine degenerative disc disease. Imaging studies have been performed that show degenerative arthritis in the spine. Therefore, the Veteran is able to satisfy the first element of the service connection test by showing a present disability. The Veteran also incurred an in-service injury. The Veteran’s service treatment records (STRs) show that the Veteran suffered a lumbar strain in June 1969 while he was running and stepped in a hole. He was placed on light duty, was prescribed pain pills and was advised to use heat treatment. The Veteran reported having muscle spasms and limited range of motion (ROM). The x-rays showed a normal lumbar spine in-service. Although the Veteran sustained an injury in service the preponderance of the evidence does not reflect it was chronic in nature nor does the record support continuity of symptomatology. The Veteran received a separation examination in 1970 where the spine was listed as normal and no back pain was reported. The Veteran also underwent a re-enlistment examination in 1975 where no back pain was recorded or noted. The Veteran also had another separation examination in 1979 and again, there was no report of back pain. The evidence of record indicates no medical records discussing the Veteran’s back pain between 1969 and 2012. In April 2012 the Veteran was diagnosed with low back pain at the Greenfield CBOC. The Veteran has continued to complain about his low back pain since April 2012, claiming that it is due to his injury in-service. In March 2013 the Veteran was afforded a VA examination. The examiner noted that the Veteran suffered flare-ups in his back due to cold weather or prolonged walking. The examiner also noted that the Veteran had limited range of motion in his back and pain on movement. However, the examiner stated that the claimed back condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner noted that the x-rays done in service were negative. Additionally, the examiner stated that the Veteran did not complain about a back problem on his separation exam, re-enlistment exam, or his separation physical in 1979. Finally, the examiner notes that during the exam the Veteran stated that the back problems did not become significant until a few years ago. In June 2018, the Veteran was seen at a private hospital for his back pain. The treatment notes state that the Veteran was treated for nontraumatic back pain and that it may have been caused by minor injury to the muscles, ligaments, or bones in the back. The Veteran received another VA examination in February 2020. The examiner noted that the Veteran was officially diagnosed with degenerative arthritis of the spine in 2013. The examiner also noted that the Veteran was silent about his back condition between 1970 to 2012. The examiner found that the Veteran has flare-ups with overuse and experiences functional impairment of the thoracolumbar spine. The examiner also reports that the Veteran shows abnormal range of motion and pain on motion of the thoracolumbar spine. The Veteran also experiences pain with weightbearing, as well as tenderness on palpation of the thoracolumbar spine. Finally, the examiner noted muscle spasms of the thoracolumbar spine and arthritis documented in the imaging studies. The examiner opined that it is less likely than not that the current condition is related to the Veteran’s lumbar strain in service. The examiner stated that “some individuals” complain of back pain with most strenuous activity or injury from a young age but that does not mean that it is the cause of the degenerative disc disease. The examiner states that degeneration of the discs is due most likely to age, genetics, and intrinsic disc loading. Most recently, the Veteran received a VA medical opinion in November 2020, ordered by the remand decision issued by the Board in September 2020. The examiner noted the lumbar strain as resolved as per the medical literature which states that, “muscle injury is self-limiting and full recovery is expected within a range of days to months depending on severity.” The VA examiner also noted the Veteran’s spondylosis but stated that the condition was not caused by service as an etiological nexus cannot be drawn between the two conditions based on the review of medical literature. The examiner stated that degeneration of the spine is a natural consequence of aging according to medical studies. The examiner also noted that while the Veteran is credible to report symptomatology, he is not qualified to make a medical diagnosis that lead to a medical nexus. Finally, the examiner also found no objective evidence to support the claim that the arthritis was present within a year of the Veteran’s separation from service. The Veteran was not diagnosed with lumbar spine degenerative disc disease until 2013 and was not diagnosed with thoracic degenerative disc disease until 2017. The VA also retrieved all outstanding private medical records as well from the West Florida Medical Group. Therefore, after a full review of the evidence, the Board notes that the VA fully complied with the September 2020 remand directives. During the Veteran’s November 2019 hearing, he made lay statements claiming that the first back complaint outside of service came six years later at the emergency room in Colorado. Additionally, the Veteran claimed that the ER doctor told the Veteran that the back pain could be due to an injury incurred a long time ago. The Veteran also stated in the medical records that he has been suffering from back pain since his separation from service. Finally, in the 2013 VA examination, the examiner reported that the Veteran stated that the back pain had only become significant in recent years. Although the Veteran is competent to report the presence of pain, the Board finds his report of continuous pain to be not credible. Specifically, the Veteran’s statements are not sufficient to show he continuously suffered back pain or a back condition since service because the statements are vague and inconsistent with the highly probative STRs and VA examinations. Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable and clearly documented medical evidence). Lay evidence that is submitted in the record must also be competent and credible. Competent lay evidence is any evidence not requiring that the proponent have any specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). While the lay statements may be competent to testify to symptoms, the Veteran in this case is not competent to provide an opinion regarding the specific issue of chronic arthritis of the lumbar spine or degenerative disc disease. As a lay person, the Veteran does not have the education, training, and experience to offer a medical diagnosis or an opinion as to the condition. He also does not possess the requisite training and education to offer an opinion that would show the Veteran had degenerative disc disease or chronic arthritis of the spine within a year after separation from service. Therefore, it is outside the competence of the Veteran in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case the most probative evidence are the VA examinations and in particular the 2020 examination. The examiner reviewed the records, carefully considered the lay statements and provided a detailed rationale citing to medical literature to support the opinions provided. While some private treatment records, such as a June 2018 record, include a reported history that the Veteran believed the condition was related to service, this was in the reported history section and the records do not reflect the examiner concluded this was the cause. Even assuming this was a competent nexus, no supporting rationale for the opinion was provided. As such this evidence is less probative. (Continued on the next page)   Therefore, after a thorough review of the evidence by the Board, no nexus is found linking the Veteran’s present back disability to the lumbar strain suffered in-service. The preponderance of evidence is against the Veteran’s claim and is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, 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.