Citation Nr: 21021052 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-22 367 DATE: April 9, 2021 ORDER Entitlement to service connection for a back disorder, including as secondary to service-connected bilateral knee arthritis is denied. FINDING OF FACT 1. A medically chronic back disorder did not manifest in service and arthritis of the spine was not manifest within one year. A back disorder is unrelated to service. 2. The in-service back complaint was acute. Current pathology is unrelated to the in-service complaint. 3. The grant of service connection for arthritis of the knees reflects a traumatic origin (code 5010) rather than a generalized/systemic arthritis. 4. A back disorder is not caused or aggravated by a service-connected disease or injury, to include the Veteran’s service-connected (traumatic) bilateral knee arthritis. CONCLUSION OF LAW 1. A back disorder was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. A back disorder is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. 3. The back disorder is not a subsequent manifestation of a service-connected disease process. 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1979 to April 1983. 1. Entitlement to service connection for a back disorder, including as secondary to service-connected bilateral knee arthritis (Coded as 5010). Veterans are entitled to compensation if they develop 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.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran 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 -the so-called ‘nexus’ requirement.” See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection is warranted on a secondary basis for “disability which is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a). Secondary service connection is also warranted for “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease.” 38 C.F.R. § 3.310(b). The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. Relevant here, arthritis is identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). “For the showing of 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 identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303(b). Subsequent manifestations of a chronic disease process are service connected unless clearly due to independent cause. 38 C.F.R. § 3.303. The Veteran states that her back disorder was proximately due to or aggravated by her service-connected bilateral knee arthritis. Service treatment records indicate that the Veteran reported injury and pain in her back during service. In June 1981 the Veteran reported lower back pain in relation to an illness. In her January 1983 separation examination, the Veteran reported that she had recurrent back pain and specifically stated that her “thoracic back hurt.” A February 1983 motor vehicle accident report noted that the Veteran injured her neck and shoulders during the accident. The first significant medical documentation of the Veteran’s back pain after service starts in 2006. In September 2006, the Veteran reported involvement in a motor vehicle accident. Immediately after the accident, the Veteran reported not having any pain, but did have neck and back pain after the accident. The Veteran reported lower back pain in July 2012. A July 2019 Disability Benefits Questionnaire affirmed that the Veteran has arthritis of the thoracolumbar spine. Pursuant to an August 2020 remand, the Veteran was afforded a new examination in October 2020. The VA examiner concluded that the Veteran’s back condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner stated that “The claims folder notes degenerative arthritis of the L spine in 2013 as mild. No objective evidence of arthritis diagnosed during AD or within one year of separation from service. If the veteran were diagnosed with L spine arthritis in the 1980's it would not be mild upon x-ray reading in 2013 as arthritis typically worsens over time/years. The back pain that was experienced in service in relation to the MVA was acute and unrelated to the present-day arthritis diagnosis. A nexus is not established.” The VA examiner also found that the Veteran’s back disorder is less likely than not proximately due to or the result of her service-connected bilateral knee arthritis. The VA examiner stated that “The conditions of back disorder to include lumbar [degenerative disc disease] and bilateral knee arthritis are not medically related. The back disorder to include lumbar [degenerative disc disease] is a separate entity entirely from the bilateral knee arthritis and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship…It is not unusual for two joints to share properties in the same person, but one joint’s disease does not “spread” to another or cause damage to it.” The VA examiner noted that a baseline level of severity could not be determined, but that the Veteran’s back disorder the Veteran’s back disorder was less likely than not aggravated beyond its natural progression by her service-connected bilateral knee arthritis. The VA examiner wrote that “There is no evidence of aggravation beyond normal progression found in the medical records of veteran. No credible medical evidence that shows aggravation of the Lumbar spine arthritis by the SC bilateral knee arthritis. No evidence of antalgic or altered gait. No evidence of altered weight bearing status upon review of the claims folder.” In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the October VA medical opinions that the Veteran’s back disorder is likely than not related to service or a service-connected disorder as highly probative medical evidence on this point. The Board notes that the examiner rendered these opinions after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds these medical opinions to be highly probative as they are adequately supported by additional rationale, as the examiner explained their reasoning thoroughly. The Board has considered the lay statements of the Veteran regarding her back disorder. The Veteran is competent to provide evidence of what he experiences, including her symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what she experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find her statements to be as probative as the VA examiner’s opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner’s medical expertise. Notably, the Veteran has not indicated that a medical professional provided her with a diagnosis of a back disorder during active service, or within a year of separation. With regards to chronic disease, chronic disease (arthritis) of the back was not “noted” during service or within one year of separation within the meaning of section 3.303(b). While the Board notes the Veteran’s history of in-service events, it finds that the service treatment records do not show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Rather, despite her report of a history of pain, there were no reports specific to arthritis of the thoracolumbar spine, specifically during or a year after service. Furthermore, the evidence does not establish that arthritis of the thoracolumbar spine was manifest to a compensable degree with one year of separation. 38 C.F.R. §§ 3.307; 3.309. In sum, there is insufficient competent and probative evidence linking the Veteran’s back disorder, to include arthritis, to service. The more probative evidence establishes that the Veteran did not have a medically chronic back disorder during service, that such current disorder is not related to any event in service, and that it is not related (causation or aggravation) to the Veteran’s service-connected traumatic bilateral knee arthritis. The evidence establishes that the remote onset of a back disorder is unrelated to service or service-connected disease or injury. In reaching this determination, the Board notes that service connection for arthritis of the knees has been granted. Generally, subsequent manifestations of the same disease process are service connected. 38 C.F.R. § 3.303. However, the grant of service connection for the knees is under diagnostic code 5010, reflecting a   traumatic process rather than a systemic or generalized process. Therefore, the arthritis of the spine is not a subsequent manifestation of the service-connected traumatic arthritis of the knees. Regardless, the examiner determined that there was no relationship (causation or aggravation) between the two conditions. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonah Nelson, 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.