Citation Nr: 21022064 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-21 249 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 June 1970 to June 1973. 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 2018. 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. 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 issues 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 reported that he fell on snowy steps during his active service. See September 2015 notice of disagreement. 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 June 2019 VA examination. Accordingly, a current disability is established. However, the Veteran’s service treatment records are silent for any complaints of or treatment for a low back disability, and the first post-service medical evidence of record reflecting complaints of a low back disability are dated in April 1997, 24 years after the Veteran’s discharge from service. At that time, the Veteran reported chronic back pain. Thus, the record does not establish in-service incurrence of a left hip disorder. In the October 2018 Board remand, the Board determined that the Veteran’s reports of falling and injuring his back during service were deemed credible. As such, the Veteran was provided a VA examination in June 2019. The VA examiner reviewed the record, interviewed the Veteran, and conducted an in-person examination. The Veteran reported that he hurt his back in 1972 when he slipped and fell on icy stairs. The VA examiner diagnosed the Veteran with degenerative arthritis of the spine and opined that the condition is less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner explained that there was no evidence that the Veteran sought and/or received treatment for a back condition during active service. The VA examiner further explained that degenerative joint disease is largely age-related and is likely to develop as people age. The VA examiner noted that although a back injury can cause early development of osteoarthritis, there is no evidence of the Veteran injuring his back during service. Additionally, the VA examiner noted that as there is no documented injury to the spine during service, it is less likely than not that the Veteran’s reported fall in 1972 caused his current low back disability. The only evidence indicating an association between the current low back disability and active duty are the Veteran’s and his fellow service member’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. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). 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 examination of the Veteran and extensive review of his claims file, as well as consideration of reported history; therefore, the June 2019 VA examiner’s opinion is afforded great probative weight. (Continued on the next page)   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, forty-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. 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.