Citation Nr: 21022052 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-21 309 DATE: April 14, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has a low back disability etiologically related to an in-service injury, event or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability, have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1979 to September 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in October 2019. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) of the Board in April 2019. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. However, the VLJ who conducted the April 2019 Board hearing is no longer employed by the Board. In December 2020, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the April 2019 hearing is no longer employed by the Board, and offering another hearing before a different VLJ. The letter notified the Veteran that he had 30 days from the date of the letter to respond and that if no response was received the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly. The Veteran did not respond to the letter. As such, the Board will consider the case on the evidence of record. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for a low back disability is denied. The Veteran contends that he has a low back disability that is directly related to his active service. Specifically, the Veteran testified that his low back disability is related to low back pain he sustained during his active service while carrying heavy mail bags and communication wires. See, e.g., April 2019 hearing transcript. Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Initially, the Board observes that the record establishes a current diagnosis of degenerative arthritis of the spine, as shown in a December 2019 VA examination. Accordingly, a current disability is established. As to an in-service event, injury or disease, the Veteran’s service treatment records reveal that he was treated for low back pain in October 1980. Accordingly, there is also evidence of an in-service injury in the form of low back pain, and the issue remaining for consideration as to direct service connection is whether the Veteran’s current low back disability is etiologically related to the in-service injury. With respect to a nexus between the current disability and in-service event, the only competent medical opinion of record is a September 2020 VA opinion, which weighs against the Veteran’s claim. The VA examiner reviewed the record and opined that the Veteran’s low back disability is less likely than not related to his active service. As rationale, the VA examiner explained that there is no evidence that the Veteran was medically evaluated, diagnosed and/or treated for a musculoskeletal back condition during his active service. The VA examiner further explained that the low back pain documented in his service treatment records are related to urinary/urethral issues and that the Veteran was experiencing referred pain from the continued urinary tract infection. As such, there was no actual mechanical injury related to the lumbar spine. Additionally, the VA examiner noted that there is no documentation in the records reflecting a low back disability until 2013, 30 years after his separation from active service. The VA examiner reviewed the Veteran’s statements that he injured his low back during service; however, the VA examiner noted that even if an in-service low back disability is conceded, there is no evidence that the injury persisted in a chronic manner. The VA examiner further reported that in 2013 the Veteran related that his low back pain was related to injuries he sustained in 2006, 2008, and 2013 and there is nothing in the record to dispute that the Veteran accurately related his clinical history during the 2013 examination. The only evidence indicating an association between the current low back disability and active duty are the Veteran’s and his brother’s assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of degenerative arthritis of the spine is not a simple question that can be determined based on personal observation by a lay person, the Veteran’s lay testimony and the buddy statements are not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current degenerative arthritis of the spine had its onset during active duty does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of degenerative arthritis of the spine. After reviewing all evidence of record, the Board finds that the uncontradicted opinion from the VA examiner is the most persuasive evidence regarding the etiology of the Veteran’s degenerative arthritis of the spine. The examiner’s conclusion followed an extensive review of his claims file, as well as consideration of reported history; therefore, the September 2020 VA examiner’s opinion is afforded great probative weight. The Board has also considered whether the Veteran is entitled to service connection for degenerative arthritis of the spine as a “chronic disease.” See 38 C.F.R. § 3.303 (b). Arthritis is included in the list of “chronic” diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with degenerative arthritis of the spine in 2019, thirty-five years after his separation from active service. However, the Veteran has not argued, and the record does not show, that he was diagnosed with degenerative arthritis of the spine or any other “chronic” disease listed under 38 C.F.R. § 3.309 (a) during service or within one year of separation from service. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. The prolonged period from separation from service until 2019 without complaints and/or treatments for degenerative arthritis of the spine is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran’s current degenerative arthritis of the spine and his active military service. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.