Citation Nr: 21022623 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 17-24 821 DATE: April 16, 2021 ORDER Entitlement to service connection for a back condition is denied. FINDING OF FACT Any back injury in service resolved in service without residual pathology; any current back disability including arthritis that was found many years after service is not related to any injury, disease, or other events during service. CONCLUSION OF LAW Current back disability including arthritis was not incurred or aggravated in service and is not presumed to be service connected. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1957 to April 1958. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision, which, inter alia, denied entitlement to service connection for a back condition. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). In February 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Most recently, in February 2020, the claim was remanded by the Board to the agency of original jurisdiction (AOJ) for further development. After accomplishing the above, the AOJ continued to deny the Veteran’s claim (as reflected in a January 2021 supplemental statement of the case (SSOC)). Entitlement to service connection for a back condition The Veteran asserts that his current back condition may be related to an in-service surgery and/or an in-service motor vehicle accident (MVA). See February 2019 Board hearing transcript. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran’s service treatment records (STRs) note that he underwent hydrocele surgery, which included a spinal anesthetic, in September 1957. STRs later that month noted diagnoses: “hernia, inguinal, indirect, left, with communicating hydrocele - treated, cured.” STRs dated in October 1957 indicate that the Veteran complained of intermittent episodes of severe back pain extending from his lumbosacral region up into his neck and an inability to sleep at night following the surgery. The army physician noted that “X-rays of the lumbosacral spine were entirely negative” and “[n]euroligical examination of the lower extremities reveals no abnormalities whatsoever.” The physician stated that “there is a remote possibility that [the Veteran’s back issues] could be a complication of spinal anesthesia” but opined “there is no evidence of orthopedic disease nor is there a history of trauma to suggest same.” STRs dated in January 1958 note that the Veteran was involved in an MVA, where the car went over an embankment and threw him into the front seat. The Veteran had some high back pain: “possible cervical whiplash, probable functional pain.” A February 1958 STR notes that the Veteran is again complaining of the spinal tap. The Veteran’s April 1958 separation examination noted his hernia scar and hydrocele, but his spine and lower and upper extremities were revealed to be normal. The claims file contains records of post-service treatment of the Veteran from the 2000s forward. VA treatment records dated in November 2011 note that the Veteran underwent back surgery; VA treatment records dated in February 2017 report that the Veteran had back surgery over five years ago and stated that he “[f]eels like the screws/pins are getting loose. I can only walk 20 steps before I have to stop and rest because the pain is so bad.” At his Board hearing, the Veteran testified that his first back surgery was in the 2000s, but he could not remember the exact date. The Veteran’s wife stated one of the Veteran’s ex-wives told her that the Veteran had back pain. In the February 2020 remand, the Board noted that the prior VA medical opinions of record were not adequate, and remanded for new VA medical opinion. The Veteran underwent VA examination in January 2021. The examiner noted the following diagnoses: degenerative arthritis of the spine; spinal fusion; s/p L1-L5 with residual lumbar scars; and lumbar and thoracic degenerative disk disease (DDD) and degenerative joint disease (DJD) with right lumbar radiculopathy. The examiner reviewed the medical evidence and noted the Veteran’s post-hernia hydrocele surgery, which included a spinal anesthetic as well as the in-service MVA. She opined that the Veteran’s back condition was less likely than not related to service. As rationale, she stated that “although some issues with back pain were noted in service post spinal tap and hernia/hydrocoele repair, no continuum within one year was established after discharge from service with ongoing back pain.” Moreover, she opined that although there were no available records regarding chronic back pain prior ot the Veteran’s surgeries, lumbar fusion is usually “due to lumbar DJD, DDD with radiculopathy, and refractory pain.” The examiner stated that “judging on initial surgery reportedly being done first around 2011, is more likely related to advancing age and development of degenerative arthritis and disc disease, rather than post spinal tap or mechanical in service back injuries.” Regarding the in-service MVA, the examiner stated that following the accident no significant immediate injuries were reported that would have caused his current traumatic degenerative back arthritis. The Board finds that the examiner’s opinion is probative, because it is based on an accurate medical history, the Veteran’s lay statements, and provides explanations that contain clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). (Continued on the next page)   Although the Veteran is competent to report pain in his back, he is not competent to diagnose arthritis or that his degenerative back arthritis began during service or is related to his in-service hydrocele surgery and/or an in-service MVA. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case 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). Consequently, the Board gives more probative weight to the January 2021 VA medical opinion as discussed above. The Veteran and his wife are in a position to recall an injury and treatment in service. On the question of whether injury in service was followed by chronic back pain that continued or recurred through the remainder of service and afterward, however, the Veteran himself was uncertain as to whether he had continuous back pain in and since service. See, e.g., Board hearing transcript, pp. 6-7; 11. Moreover, the Board notes that following his discharge there is no documentation of back complaints until approximately 2010, five decades after the Veteran’s 1958 separation from service. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, the greater persuasive weight of the evidence is against a connection between events in service and the Veteran’s current back conditions and the preponderance of the evidence is against direct or presumptive service connection for back disability. Because the weight of the evidence is against the claim, the doctrine of the benefit of the doubt is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.