Citation Nr: 21022125 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 13-35 157 DATE: April 14, 2021 ORDER Entitlement to service connection for a low back disorder, to include as secondary to a service-connected right knee disorder, is denied. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether the Veteran’s low back disorder had its onset during or is etiologically related to military service or caused or aggravated by a service-connected right knee disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder, to include as secondary to a service-connected right knee disorder, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1968 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). This matter was previously before the Board in 2016, 2018, 2020, and 2021. In January 2021, the Board remanded the matter to obtain an addendum medical opinion addressing lay evidence from the Veteran and considering a theory of secondary service connection. See 38 C.F.R. § 3.310. The agency of original jurisdiction (AOJ) obtained a medical opinion in January 2021. After reviewing the opinion, the Board finds it to be substantially compliant with prior remand directives. Accordingly, this matter is ready for a decision on the merits. Legal Criteria – Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., 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). A disability which is proximately due to or the result of a service-connected disorder shall be service-connected. Any increase in severity of a nonservice-connected disorder that is proximately due to or the result of a service-connected disorder will also be service-connected. 38 C.F.R. § 3.310. Service Connection – Low Back Disorder The Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for a low back disorder, to include as secondary to a right knee disorder. Therefore, the appeal may not be granted. The record reflects a current diagnosis of degenerative disc disease of the spine and lumbar spondylosis. See C&P Exam, September 2020. Thus, the questions for the Board are (1) whether there exists an in-service event, injury, or disease relevant to a lumbar spine disorder and (2) whether there exists a nexus between a current lumbar spine disorder and the relevant occurrence during service or a service-connected right knee disorder. See 38 C.F.R. §§ 3.303, 3.310. Service medical records do not show any reports of back pain. In June 1970, the Veteran’s separation examination documented a normal spine and musculoskeletal system and the Veteran denied a history of “recurrent back pain.” In August 1971, more than a year after the Veteran’s discharge, a VA compensation and pension examination found no abnormalities of the musculoskeletal system. However, the record reflects that the Veteran received the Parachutist Badge, and he contends that his current low back disorder is related to multiple jumps and incorrect falls. The Veteran submitted a letter from Dr. N.O.V. dated May 2011. She stated that the Veteran “while in active service was a parachutist and injured his back and knees as a result of multiple jumps and incorrect falls. He started to complain of back pain while at service secondary to trauma when landing. This injuries causes stress at back and knees, chronic inflammatory problems with subsequent degenerative changes.” She concluded that it is more likely than not that the Veteran’s back disorder is service-connected from his injuries as a parachutist. The Board notes that Dr. N.O.V. did not review relevant service medical records, and appears to have based her opinion on lay history as reported by the Veteran. The AOJ obtained a medical opinion from Dr. K.S.R. dated January 2021. After reviewing the claims file, including the Veteran’s lay contentions, she found that it is less likely than not that the currently diagnosed lumbar spondylosis and degenerative disc disease are incurred in or caused by service, had onset within a year of discharge, or are otherwise related or attributable to a disease, event, or injury in service, to include as due to parachuting. She noted that available service treatment records are silent for complaints, injury, evaluation, or treatment for low back pain during active duty service. She noted that there is no evidence within ten years after his discharge of continuity of complaints or treatment related to a lower back condition. She observed that the Veteran began complaining of low back pain at the VA medical center in 2010, years after his discharge from service. Dr. K.S.R. explained that the existing lumbar spondylosis and degenerative disc disease were diagnosed by X-ray over 40 years after the Veteran’s discharge from military service. She concluded that the Veteran’s lumbar disorders are related to the normal aging process, and not related to parachuting during military service. Dr. K.S.R. further found that it is less likely than not that the Veteran’s lumbar spine disorders are proximately due to, a result of, or aggravated by a service-connected right knee disorder. She explained that the lumbar spine and knee disorders are different disease entities with different anatomical and pathophysiological processes, and unrelated to each other. She considered the report of Dr. N.O.V. in May 2011, but observed that it was based on a subjective narrative and lacked clinical and objective findings, including review of the Veteran’s service treatment records. She considered the Veteran’s lay reports that he injured his back parachuting, but found that there was no evidence of chronicity of care or treatment during military service or for decades thereafter. She found that relevant X-ray findings supported that the disorders are a part and parcel of the normal aging process, and not related to parachuting during military service. The Board has reviewed the remainder of the Veteran’s private and VA medical records. However, such records do not show evidence of a nexus between the Veteran’s low back disorders and military service or a service-connected injury. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for a low back disorder, to include as secondary to a service-connected knee disorder. Dr. K.S.R. opined that it is less likely than not that the Veteran’s lumbar disorders are related to service, or are proximately due to, a result of, or aggravated by a service-connected right knee disorder. As Dr. K.S.R. reviewed the claims file, including the Veteran’s lay contentions, and rendered a persuasive medical opinion consistent with her expertise, the Board finds her opinion to be of significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the opinion of Dr. N.O.V. dated May 2011. However, it appears that Dr. N.O.V. based her opinion on lay history provided by the Veteran and did not consider relevant service medical records. Notably, she opined that the Veteran “started to complain of back pain while at service”, but the Board notes that the Veteran explicitly denied “recurrent back pain” in service in June 1970. Moreover, she did not consider the medical examinations in 1970 and 1971, which found no abnormalities of the spine and musculoskeletal system. Accordingly, the Board affords her conclusions lesser probative weight. See D’Aries v. Peake, 22 Vet. App. 97, 107 (2008) (holding that the Board may prefer one medical opinion to another as long as it provides adequate reasons and bases). (Continued on the next page)   Lay statements from the Veteran and his attorney have been considered. However, the ability to link degenerative disc disease and lumbar spondylosis to military service requires complex diagnostic testing and knowledge of human anatomy that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran asserts that he had back pain after parachuting during military service, the Board notes that he explicitly denied having “recurrent back pain” in his separation report of medical history. Furthermore, medical examinations in 1970 and 1971 found no abnormalities of the spine and musculoskeletal system. See Caluza v. Brown, 7 Vet. App. 496, 511 (1995); Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board is aware that the attorney contended that the disorders are a delayed-onset reaction to parachuting in military service. However, the competent medical evidence found that a delayed-onset nexus is less likely than not, based on review of the claims file, including X-ray findings showing an age-related onset of symptoms. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). No competent medical evidence of record has challenged this finding. Indeed, Dr. N.O.V.’s opinion was based on findings that the Veteran was injured “while in active service” and complained of back pain “while at service”, neither of which is supported by the record. In sum, the Board finds that the evidence does not reach the level of equipoise in the claim at issue, and, thus, the appeal may not be granted. See 38 U.S.C. § 5107(a). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.