Citation Nr: 21021915 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-23 345 DATE: April 14, 2021 ORDER Service connection for a back condition is denied. FINDINGS OF FACT 1. The Veteran was presumed sound on service entrance as to any lumbar spine disorder. 2. The Veteran's lumbar spine disorder did not manifest to a compensable degree within one year of service separation. 3. The Veteran's lumbar spine disorder did not originate during service and was not caused by any in-service event, injury, disease, or disorder. CONCLUSION OF LAW The criteria to establish service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1975 to March 1976. This matter was previously before the Board of Veterans’ Appeals (Board) in April 2020 when the issue was remanded for further development. Further development having been completed; the matter is once again before the Board. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § § 1110. 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. 38 C.F.R. § § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With regard to the competency of lay evidence, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed through the use of his senses, not medical expertise. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § § 5107(b); 38 C.F.R. § § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107(b). Service connection for a back condition is denied. The Veteran contends that he injured his back while training at Camp Lejeune due to extreme running and training, to include carrying heavy weights. The Veteran also contends that within a year of separation, an orthopedic surgeon told him that he had a 5th vertebrae pars defect that would lead to spondylolisthesis and that he had scoliosis of the spine. The preponderance of the evidence is against the claim and the claim will be denied. The Veteran’s July 1975 report of medical examination at enlistment indicates a normal clinical evaluation of the spine and musculoskeletal system. The Veteran has stated that he did not report back problems in-service. Indeed, the Veteran’s service treatment records (STRs) are silent for any complaints of back pain during his service, to include his March 1976 report of medical examination at service separation, which indicates a normal clinical evaluation of the spine and musculoskeletal system. Additionally, the Veteran’s medical records are silent for any diagnosis of scoliosis in the 1970’s. Social Security Administration (SSA) records indicate reported back pain with reported onset in October 2005. The records also indicate a reported lumbar laminectomy in 1986 at Sibley Memorial Hospital in Washington, D.C. A May 2009 private medical record indicates that the Veteran reported a history of low back pain of longer than 15 years in duration. In particular, the Veteran reported that his pain began when he fell down a flight of stairs in 1986. The Veteran reported that he underwent a laminectomy in 1986 after the fall. However, the Veteran did not report or otherwise mention that his back condition is related to his service. Instead, the Veteran only related his back condition to his reported fall in 1986 and laminectomy later that same year. The Veteran also reported during July 2009 private physical therapy that he had a long history of low back pain since 1986 when he reported that he underwent a laminectomy. The April 2020 Board remand directed the Agency of Original Jurisdiction (AOJ) to obtain, if possible, all of the Veteran’s private evaluations and treatment, to include the 1986 laminectomy. In May 2020, VA requested that the Veteran complete and return authorization forms to allow VA to obtain these records. The Veteran was notified that a decision may be made on his claim if a response was not received within 30 days. As of the date of this decision, the Veteran has not responded to the May 2020 request for information and the Veteran has not otherwise indicated that he planned to respond to the request for information regarding any outstanding private medical records, to include the 1986 laminectomy. A 2011 MRI shows lumbar spine spondylolisthesis and stenosis. In October 2012, a non-VA chiropractor noted that the Veteran has been a patient of his office since 2011 for both chiropractic and medical care. The examiner stated that “I have discussed and reviewed with [the Veteran] the events of his military past, with regard to the lower back area.” The examiner also noted that available MRI reports were reviewed. The examiner opined that it is more likely than not that the Veteran’s back conditions were a direct and indirect result of the stress put upon his malformed pars defect of the lumbar spine, which is most probably due to his service. The examiner further stated that the Veteran’s condition should have been identified by imaging during his service. This opinion is of low probative value for two reasons. It lacks thoroughness and detail, and it appears to be based on the Veteran’s reported injury in-service rather than a review of the Veteran’s claims file. The examiner did not discuss the specific details of the Veteran’s service and post-service medical records that informed his opinion. Prejean v. West, 13 Vet. App. 444 (2000). The opinion is also speculative. The examiner opined that the Veteran’s condition “is most probably due to his service.” Polovick v. Shinseki, 23 Vet. App. 48. 54 (2009) (a medical opinion is speculative when it uses equivocal language such as “may well be,” “could,” or “might”). Thus, the opinion lacks thoroughness and detail, appears to be based on the Veteran’s reported injury in-service and not a review of the Veteran’s claims file, and it is speculative in nature. Therefore, the opinion is of low probative value. In an October 2012 statement, the Veteran’s mother stated that the Veteran lived with her after his discharge and for many years post-service. She stated that the Veteran had no ailments prior to his service, but that he had constant problems with his back in the years post-service. In an October 2012 statement, the Veteran’s sister stated that the Veteran had consistent problems with his back post-service and for many years thereafter. In an October 2012 statement, the Veteran’s partner stated that she has been with the Veteran since 1996. She noted that she has worked as a licensed practical nurse for over 25 years. She stated that the Veteran has consistently told her that he was born with a spine defect, that his spine defect has been a major cause of his back condition, and that he originally injured his back in-service. A January 2013 private medical record indicates two previous back surgeries. However, the dates of the noted previous back surgeries are not documented, and they appear to be based on the Veteran’s own report. In an April 2016 VA examination, the examiner noted a diagnosis of spinal stenosis. The examiner noted that the claims file was reviewed, and an in-person examination was performed. The examiner opined that the Veteran's claimed back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's STRs are silent for a back condition. The examiner stated that it would be mere speculation to opine that carrying infantry equipment during eight months of service caused chronic back pain with laminectomy 20 years later. A 2016 MRI of the lumbar spine shows bilateral spondylosis and multilevel degenerative changes. A November 2017 VA medical note indicates that an inspection of the Veteran’s back shows no scoliosis, kyphosis, no erythema, no warmth, and no swelling. Pursuant to the October 2018 Board remand, the Veteran was afforded a VA examination in August 2019. The examiner was asked to address the October 2012 private medical opinion and the April 2016 VA opinion in providing the new opinion. The examiner opined that the Veteran’s back condition is less likely than not incurred in or is related to his service. The examiner based the negative nexus opinion on the fact that the Veteran’s STRs are silent for a back condition. However, the examiner did not address the October 2012 private medical opinion or the April 2016 VA opinion. As discussed in the April 2020 Board remand, the August 2019 VA opinion is inadequate since it failed to address the prior medical opinions of record. In a September 2019 private medical record, the Veteran reported ongoing low back pain. In the April 2020 Board remand, a new VA examination was requested to determine the etiology of the Veteran’s back condition. The examiner was asked to address the October 2012 private opinion, the April 2016 VA opinion, and the Veteran’s contention that he was diagnosed with scoliosis of the spine within one year of his separation from service, and that he believes that daily running and marching with weight caused his back condition. The examiner was also asked to address the Veteran’s medical history contained in his SSA medical records. Pursuant to the April 2020 Board remand, the Veteran was afforded a VA examination in September 2020. The examiner noted diagnoses of degenerative arthritis of the spine and spinal stenosis. The examiner noted that an in-person examination was conducted and that the Veteran’s records, to include his VA e-folder and all available records, were reviewed in conjunction with the examination. The examiner opined that the Veteran’s back condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there is no record of an illness, event, or injury in-service that caused his back condition. The examiner stated that there is not enough sufficient evidence that the current condition is related to service since there is no record of treatment in-service. The examiner explained that prior to the 2011 MRI, there is no mention of a pars defect (spondylolysis), to include in the Veteran’s enlistment examination. The examiner noted that a November 2017 VA medical note indicates that an inspection of the Veteran’s back shows no scoliosis, kyphosis, no erythema, no warmth, and no swelling. The examiner stated that there are no diagnostic studies to reflect the scoliosis diagnosis and no official diagnosis rendered outside of what the Veteran claims. As the Veteran contends that he had a condition prior to service that was aggravated by his service, thereby causing his current condition, an analysis of the presumption of soundness as it relates to the Veterans back condition is necessary. The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Cotant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable (obvious or manifest) evidence that the veteran's disability was both preexisting and not aggravated (i.e. increased in severity beyond its natural progression) by service. If this burden is met, then the veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The report of the Veteran's July 1975 physical examination for service entrance indicates that the Veteran's spine was normal. No lumbar spine disorder was noted and there is no other indication that the Veteran had a disability at the time of service entrance. Therefore, the presumption of soundness attaches. 38 U.S.C. § 1111; 38 C.F.R. § 304(b). VA must then determine if the presumption of soundness is rebutted. There is no clear and unmistakable evidence (obvious and manifest) that the Veteran's lumbar spine disorder both preexisted and was not aggravated by service. Therefore, there is no clear and unmistakable evidence that the Veteran's lumbar spine disorder preexisted service and the presumption of soundness has not been rebutted. Wagner, 307 F.3d at 1096. The claim is therefore one for service connection. Id. The preponderance of the evidence is against the claim and the appeal will be denied. The STRs are silent for back symptoms. The March 1976 separation evaluation is absent any complaints or reports of back symptoms. While the Veteran believes that his current lumbar spine condition is related to his service, he is not competent to establish causation by injury or any other aspect of active duty service. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical 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). The record indicates that the Veteran did not complain of any chronic lumbar spine condition during service. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that his lumbar spine condition is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.